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What Do Courts Look At When Deciding Custody?

In Texas, custody is called conservatorship and its framework is defined in Chapter 153 of the Texas Family Code. There are two main types of conservators called managing conservators and possessory conservators. Within managing conservators there are sole managing conservators and joint managing conservators. To understand what type of custody you seek for your children you will need to know the difference between these types of conservatorships listed above.

Possessory conservatorship is also termed as access or possession. This deals with what kind of visitation schedule and plan the parents will have regarding their children. What we think most about with custody is what kind of managing conservatorship the parents will have.

Sole Managing Conservatorship

A sole managing conservator has the exclusive right to make all decisions for the child. Unless limited to by the court they will have the right to designate the primary residence, consent to any invasive procedures, consent to any treatments, etc. All decisions are made by the parent with sole managing conservatorship.

Here the other parent will still get visitation of the child and is known as the possessory conservator. They will be able to “possess” their child through an ordered visitation schedule.

Joint Managing Conservatorship

In a joint managing conservatorship both parents share the rights and duties to their child. They can either be given those rights and duties jointly, exclusively, or independently.

In JMC a primary conservator will need to be designated and this conservator will have the right to establish the primary residence of the child.

Best Interests of the Child

In Texas, decisions made regarding a child are always made on the standard of what is in the “best interests of the child.” Especially when deciding between sole and joint conservatorship this standard is employed. There are some factors that a court will look at to help bring them to their decision and can include:

  • The child’s desires: a child’s desires will only be taken into consideration if they are 12 and over.
  • The emotional and physical needs of the child (both present/future)
  • Parental abilities of parents
  • Stability of the home environment
  • The plans each parent has for the child
  • Whether there is evidence of domestic violence
  • Whether any false reports of child abuse have been filed.

Typically minors (under the age of 18), do not always know what is in their best interest when making major decisions about their life. However, if you have a child 12 years or older, they may be able to voice their opinions on who they want to live with. A party in a custody battle can move to have the court hear what their child 12 and over has to say. This interview will only have a little bit of weight on the decision which rests in the hands of the Judge.

The emotional and physical needs of a child is another way a Judge will tell who is more worthy of being the primary conservatorship. This goes hand in hand with the parental abilities of the parents. If you have routinely been involved emotionally and physically in your child’s life this will give some weight to the argument on why you deserve to be the primary conservator.

A stable home environment and having plans for your child’s future are another sign that you may be the better fit. Children need a stable foundation to grow on and having a life where you are constantly moving around does not give a child a sense of stability. Having plans can go deeper than knowing what you want for your child’s future. It can also involve knowing what arrangements will be made for your children and how you plan to give them familiarity with their schedules in life.

Texas is also very involved with promoting family safety and will take into great consideration whether there has been evidence of domestic violence. This could even lead to an investigation by CPS who also wants what is in “the best interest of the child.” Lastly, if you have ever made false reports of child abuse know that these too will be considered.

Overall, a Judge will award primary conservatorship to a parent who is active in their child’s life and have been providing from them more. If you cannot say that you’ve ever fed or bathed your children or even know where they attend daycare or school, you may want to reconsider if you will be able to be their primary provider.

Factors That May Hurt You

When a Judge makes decisions regarding child custody, they want a parent they believe will be able to provide a healthy environment for the child, and a healthy environment starts with looking at the parents themselves. If you have suffered from mental illness, been the abuser in a domestic violence situation, had issues of substance abuse, or have a disability these factors will be considered greatly.

Although these situations will not be the sole reason a Judge makes their decision, you should be aware that often the opposing party will use these tactics to intimidate you to agree to their demands or argue why they deserve to be the sole conservator.

These past shortcomings will help you be prepared to do what is needed to portray you in a positive light. If you are seeking out the help you need and working on making the changes, this will help show you may be a better fit for your children and are at least trying.

Factors That Will Not Affect You

Most people believe that Texas is a mother state, but this could not be any more of a myth. Gender alone is not the sole factor that a Judge bases their decisions on. However, you should keep in mind that based on the age and gender of your children, they may identify with one parent more.

Your religion will also not be a major factor unless those cultural beliefs and practices will put your child in immediate danger. No one culture or way of life is the right one and a Judge will take that into consideration. This too is true for a parent’s sexual orientation, because as times have changed to be more accepting of same-sex couples and marriages this will not determine how a Judge decides on issues of custody.

Now that you know what factors will be considered in your child custody case you will be well prepared to fight for what conservatorship is in the best interest of your child. If you are still concerned about what you can do to help your case do not hesitate to give us a call. We have attorneys here at the Law Office of Bryan Fagan to offer expert advice for your child custody case.


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