11 Things You Must Know About Texas Child Custody

The Texas child custody process can be a confusing, emotional, and stressful maze to navigate. It does not help that the laws concerning child custody and divorce vary by state. This blog article is intended to help answer many of the important questions asked by my clients and potential clients.

Where can a new child custody case be filed?
Does the court still have power over a child if one of the parents moves out of state?
Can my custody order be modified?
How is child custody different in Texas than in other states?
Can I get sole custody of my child?
Can my 12 years old decide which parent they live with?
What rights do a conservator of a child have?
If I am the sole managing conservator, does that mean the other parent does not have any rights?
Does a history of domestic violence or any other criminal past record matter in a custody case?
How does a court decide who should be the primary conservator of a child?
Do I Have to Pay Child Support if I Have Joint Custody of My Child in Texas?

Where can a new custody case be filed?

Under Texas Family Code 152.201, a new custody case can be established regarding a child if:

The State is the “Home State” of a child on the date of the commencement of the proceeding.
A court of another state does not have jurisdiction or has declined Jurisdiction. In other words, if you are filing for custody of a child, your child needs to have lived in the state for at least six months. You can read more about this topic in my blog post “Help!! My Ex-Spouse Kidnapped my Child.”

Does the court still have power over a child if one of the parents moves out of state?

When parents of a child get divorced in Texas and continue to live in Texas, Texas clearly has jurisdiction over the parties. But what happens if one of the parents moves out of state? If a parent is filing for the custody of a minor in Texas, that parent will need to provide the names of the people who have lived with the child for the past five years and where the child has lived.

Can my custody order be modified?

Child custody issues can be modified in Texas by the court that made the initial custody decision. If a court has made an initial custody determination regarding a child then that Court has exclusive continuing Jurisdiction under Texas Family Code Section 152.202. I like to say child custody issues are never done until the child turns 18.

How is custody different in Texas than in other states?

In Texas, what most people think of as custody is called conservatorship. Chapter 153 of the Texas Family Code sets forth the framework for appointing individuals as conservators and granting rights of possession and access to a child.

There are two types of conservators:

managing conservator and
possessory conservator

Managing conservators are then further divided into sub-categories:

sole managing conservator and
joint managing conservator

Under the Texas Family Code, it is presumed that the parents should be named joint managing conservators. One of the most fought over rights is the right to choose the primary residence of the child.

The parent who gets to make this decision is often referred to as the primary conservator. You can read more about this topic in my blog article “Child Custody Basics in Texas.”

Can I get sole custody of my child?

Many parents who ask me this question are really referring to being the primary conservator as discussed above. However, the answer both to the question of whether they can be the primary conservator or the sole managing conservator has nearly the same answers yes if a court decides “it is in the best interest of your child.” “When Can a Minor Child Weigh in on Custody Decisions in Texas?”

Can my 12 years old decide which parent they live with?

I often have a parent ask me if, “If their 12-year-old child can decide which parent they live with?” This is one of the biggest myths in Texas child custody law. There is a magic age when a child can decide between parents, and that age is 18.

The big reason that a being12 or older matters in a custody case is that if a parent requests, they must be interviewed by the judge. You can read more about this topic in my blog post, “When Can a Minor Child Weigh in on Custody Decisions in Texas?”

What rights do a conservator of a child have?

A sole managing conservator is a person that is granted exclusive rights to make decisions for the child. If a parent is named sole managing conservator under Texas Family Code Section 153.074, the parent will have the following rights and duties exclusively (unless limited by the court):

the right to designate the primary residence of the child;
the right to consent to medical, dental, and surgical treatment involving invasive procedures;
the right to consent to psychiatric and psychological treatment;
the right to receive and give a receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
the right to consent to marriage and to enlistment in the armed forces of the United States;
the right to make decisions concerning the child’s education;
the right to the services and earnings of the child; and
except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as agent of the child in relation to the child’s estate if the child’s action is required by the state, the United States, or a foreign government.

A Joint Managing Conservator is one of two people who share the rights and duties of a parent. With Joint Managing Conservators, each parent has parceled out a list of rights and duties that they share in regards to the child or children either:

jointly,
exclusively, or
Independently

If I am the sole managing conservator, does that mean the other parent does not have any rights?

In most family cases, a parent of a child, whether sole, joint, or a possessory conservator, has the following rights and duties at all times:

the right to receive information from any other conservator of the children concerning the health, education, and welfare of the children;
the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children;
the right of access to medical, dental, psychological, and educational records of the children;
the right to consult with a physician, dentist, or psychologist of the children;
the right to consult with school officials concerning the children's welfare and educational status, including school activities;
the right to attend school activities;
the right to be designated on the children's records as a person to be notified in case of an emergency;
the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the children; and
the right to manage the estates of the children to the extent the estates have been created by the parent or the parent's family.
the duty to inform the other conservator of the children in a timely manner of significant information concerning the health, education, and welfare of the children; and
the duty to inform the other conservator of the children if the conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter.

THE OTHER PARENT STILL GETS VISITATION

When one parent is designated as Sole Managing Conservator, the other parent will be designated as the Possessory Conservator. Possessory Conservator designates the parent who has a right to “possess” the child or children through an ordered visitation schedule.

Under the family code, both parents are encouraged to ensure the welfare of the child. Even one parent is awarded sole custody, and both parents are expected to act in a manner that ensures the best interest of the child.

Does a history of domestic violence or any other criminal past record matter in a custody case?

In Texas, there is a presumption under the law that parents should be named as joint managing conservators. To determine the appropriate conservatorship of the child, the court will use the "best interests of the child" standard. When determining if parents should be appointed Joint or Sole conservators, the "best interests of the child" standard considers many factors, including whether:

The child’s desires
The emotional and physical needs of the child, now and in the future
Danger to the child, now and in the future
The parental abilities of both parents
Stability of the home environment
The plans each parent has for the child.
Whether there is evidence of domestic violence
Whether either parent has filed a false report of child abuse

If there has been domestic violence, then it becomes easier to rebut the joint managing conservator presumption. The Texas Family Code prohibits the appointment of parents as joint managing conservators if credible evidence of domestic violence is presented.

How does a court decide who should be the primary conservator of a child?

The primary parent is awarded the exclusive right to designate the primary residence of the child. There are a number of factors the Court considers when deciding who should be given the temporary exclusive right to establish the primary residence of the child at a Temporary Orders hearing.

Assuming both parents are fit, the Court is going to look at which parent has been the primary caretaker of the children. Some things a court will consider when making this determination include:

Who fed your child;
Who bathed your child;
Who got your child ready for school;
Who took your child to school or daycare;
Who picked up your child from school or daycare;
Who scheduled, attended, and took the child to and from doctors’ appointments;
Who attended school activities and parent-teacher conferences;
Who participated in the child’s extracurricular activities; and
Who helped with the child’s homework?

Generally, the way custody is decided in Texas is that the court will look at which parent has been doing those things most of the time, and unless there is a good reason to do otherwise, that parent will be made the primary conservator of the child. You can read more about this in my blog article, “Who gets to keep the kids while the divorce is pending in Texas?”

Do I Have to Pay Child Support if I Have Joint Custody of My Child in Texas?

Child support is still paid when parents have joint custody in Texas in most situations. You can read more about this topic in my blog article “Do I Have to Pay Child Support if I Have Joint Custody of My Child in Texas?”

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