Child Custody Basics for Texas Parents Revisited

When parents walk into the Law Office of Bryan Fagan, PLLC for a consultation with one of our family law attorneys, the subject will invariably turn to how they can maximize the amount of time they can spend with their child.

This is understandable and doesn’t necessarily mean that this person is attempting to minimize the other parent's opportunity to be with the child. It just means that at a time where suddenly their ability to see their child whenever they choose is not guaranteed, the questions naturally turn to securing as much time with the child as possible.

The ways to do this and the situations in which child custody comes up are varied. What follows is an overview of the process of petitioning for and receiving an Order from a Texas Court regarding child custody.

What is Child Custody in Texas?

First and foremost, what is commonly referred to as “child custody” is known in the laws of our State as “conservatorship.”

The conservatorship has more to do with rights and duties to a child than possession and access to the child.

Rights and Duties

These rights include the right to make decisions regarding the child’s wellbeing:

Educational
Psychological
medical, etc.) as well as
duties to support and protect the child’s physical safety

Even if you do not have a child at this very moment, all parents have certain rights and duties to their child.

This is the case if you, as a parent, are divorced from your child’s other parent or were never married in the first place, or are still married.

In many divorce or child custody cases, the parent's rights and duties are agreed upon in a fairly amicable fashion.

However, there are instances where one parent wishes to keep the other from obtaining a certain right or wants to limit a certain right. If this becomes a disputed issue, Courts become involved and play a tiebreaker to decide an issue.

Joint or Sole Managing Conservatorship?

The vast majority of conservatorship situations found in Texas divorce/custody cases are joint managing conservatorships or sole managing/possessory conservatorships.

Joint Managing Conservatorship

Joint Managing Conservatorships are by far the most common structure for custody cases to take on, whether it stems from a divorce or a custody case.

A Joint Managing Conservatorship is what the name implies- a joint venture with the other parent. The parents share mutually many of the rights and duties listed in the Texas Family Code.

This is the default setting for Courts to place upon two parents as it is our State’s public policy to encourage parents to work together and share in the child-rearing responsibilities.

The defining difference between parents’ rights under a joint managing conservatorship is that one parent has the right to receive child support (and the other to pay child support), and one parent will have the right to determine the primary residence of the child, whereas the other parent will not.

Otherwise, most rights and duties are split down the middle, with no parent having the ability to play a trump card when it comes to their child's life and the decisions that will impact that life.

Final Decree of Divorce

In a Texas divorce, the party's Final Decree of Divorce is the order that the Court will sign and that will go into effect as the ground rules for parties to govern:

the dissolution of their marital estate as well as
the conservatorship
possession and access and
support of their minor child

Possession and Access

In terms of possession and access to the child, the Court will enforce just about any arrangement that the parties agree to.

This is especially true if the parties have attended mediation together. Otherwise, a Standard Possession Order (SPO) can be achieved through a trial on the merits.

The specific breakdown of an SPO can be found in the Texas Family Code. A variation on the SPO is an expanded SPO wherein the non-custodial (the parent with whom the child does not reside primarily) is entitled to an extension of the time afforded to them in the Texas Family Code’s SPO.

While there is nothing that strictly provides for “split” custody (unless a schedule is agreed to by the parties outside of the Court), an expanded SPO gets parents very close to that sort of arrangement in terms of time allocation with the child.

Suit Affecting Parent-Child Relationship

If parents were never married and one parent wishes to have Court orders implemented regarding a child, then that person would file what is known as a Suit Affecting Parent-Child Relationship (SAPCR) in either the county where they or the child resides.

Who Can File a SAPCR?

Under Texas Family Code Section 102.003, an original suit affecting the parent-child relationship may be filed at any time by:

a parent of the child;
the child through a representative authorized by the court;
a custodian or person having the right of visitation with or access to the child appointed by order of a court of another state or country;
a guardian of the person or the estate of the child;
a governmental entity;
the Department of Family and Protective Services;
a licensed child-placing agency;
a man alleging himself to be the father of a child filing by Chapter 160, subject to the limitations of that chapter, but not otherwise;
a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition;
a person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Chapter 161 or to whom consent to adoption has been given in writing under Chapter 162;
a person with whom the child and the child's guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child's guardian, managing conservator, or parent is deceased at the time of the filing of the petition;
a person who is the foster parent of a child placed by the Department of Family and Protective Services in the person's home for at least 12 months ending not more than 90 days preceding the date of the filing of the petition;
a person who is a relative of the child within the third degree by consanguinity, as determined by Chapter 573, Government Code, if the child's parents are deceased at the time of the filing of the petition; or
a person who has been named as a prospective adoptive parent of a child by a pregnant woman or the child's parent, in a verified written statement to confer standing executed under Section 102.0035, regardless of whether the child has been born.

Where to file SAPCR?

Under Texas, Family Code Section 152.201 governs initial child custody determinations. This statute states that:

Except as otherwise provided in Section 152.204, a court of this state has jurisdiction to make an initial child custody determination only if:
1. this state is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding, and the child is absent from this state, but a parent or person acting as a parent continues to live in this state;

a court of another state does not have jurisdiction under Subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 152.207 or 152.208, and:

the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;

all courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 152.207 or 152.208; or

no court of any other state would have jurisdiction under the criteria specified in Subdivision (1), (2), or (3).

(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

What is a SAPCR?

A SAPCR case is similar to a divorce in that:

conservatorship
visitation
possession and access and
child support will all be determined either by the parties in an agreement or by a Court

The major difference is that no issues of property, etc., will be dealt with.

Establishing Parental Rights

For parents who were never married to the mother of their child, a SAPCR case can go a long way towards establishing those parental rights and duties that, to this point, may not already be in place.

Many fathers in this situation were never put on the child’s birth certificate, and no other acknowledgment of paternity may have been signed or otherwise consented to.

This means that, unlike married fathers, they have no rights and duties to the child that can be enforced by a Court. Establishing paternity and the assignment of rights and duties formally is a positive aspect of these cases.

Child custody cases deal with much more than just who gets to see the child, and when that time begins and ends. What a person agrees to (or doesn’t agree to) can shape the entire life of a child and a parent for years to come. Having an attorney to assist with those decisions and advocate for their client where the situation calls for it is essential to a successful child custody case.

The Houston divorce attorneys with the Law Office of Bryan Fagan, PLLC, offer free consultations on custody, visitation, possession, and access issues. To learn more about our office and how we can best offer our services, please call us today to set up a time to meet with one of our experienced family law associates.

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