How is Child Custody Determined in a Texas Divorce?

February 12, 2023

Factors utilized by Courts to determine child custody arrangements in Texas directly hinge on the Court’s assessment of what is in the best interest of the child.

Litigating Custody in Texas 

There are many considerations for couples contemplating divorce, significantly when the parties have minor children. In scenarios where parents are unable to develop a custodial arrangement either on their own or with the assistance of counsel, judges are left to make an appropriate determination as delineated in the Texas Family Code.

Courts are bound to render judgments awarding child custody based on the child’s best interest as of the time the order is being entered. Texas courts have held that entry of such an order, implies the Court determined the parent awarded custody is the fit and proper person, most capable of exercising their duty as custodian of the child.

Under Texas Family Code chapter 151, the rights and responsibilities parents have toward their children are fully detailed. These include the duty to care for, control, protect and reasonably discipline the child. Parents are obligated to provide their children with clothing,  food, shelter, and medical care. Parents in the midst of divorce proceedings find their parenting ability and styles under the scrutiny of a judge and any attorneys involved in the litigation. Texas law does not offer any distinctions between mothers or fathers in bearing the responsibility of caring for the children but requires courts to start from the presumption both parents are fit to rear their children. It is the court’s responsibility to ensure the duties and rights of parents are satisfied so as to protect what the legislature has determined is in the best interest of the child.

The legal presumption in custody disputes is for parents to be named “joint managing conservators” of their child. Joint managing conservators share equally in all decisions pertaining to the child and allow a child to have the benefit of both parents in their lives,  despite the dissolution of the parent’s marriage.

An award of joint managing conservator does not necessarily require the children to spend equal time with both parents, rather it requires both parents to participate in making all legally significant decisions for the children. These decisions include but are not limited to medical, dental, surgical, psychological, and educational. In certain situations, for example, if one parent commits acts of domestic violence towards the other parent, a court may determine one parent to be named the sole managing conservator over the other. In such circumstances, no joint decision-making is required. The sole managing conservator has the right to establish the primary residence of the child, receive child support, and make all

the legally significant decisions for the child. Where one parent is the sole managing conservator, the other is typically named as possessory conservator, preserving their rights and responsibility as a parent but limiting their role to protect the emotional, and sometimes physical, well-being of the previously harmed parent. (Texas Family Code 153)

Courts have discretionary authority to deviate from joint managing conservator where there is abuse towards the child or one parent against the other.

The statute dictates where the Court may deviate from the presumption of joint managing conservator. Where “….credible evidence is presented of a history or pattern of past or present child neglect…physical or sexual abuse by one parent directed against the other parent, a spouse or a child…” the court may name one parent the sole managing conservator (Sec. 153.004 Texas Family Code). In situations where one parent can prove by a preponderance of the evidence, there is a history or pattern of committing family violence during the two years preceding the date of the filing of the divorce or during the pendency of the divorce, the Court may go as far to disallow the offending parent to have access to the child. The legislature and Courts have made it clear such behaviors outweigh any benefits a child may receive from having both parents present in his or her upbringing.

The overarching requirement of a judge making the assessment to award joint managing conservators or sole managing conservators is for a determination of the best interest of the child at the time the proceeding occurs. Pursuant to Section 153.134 of the Texas Family Code, the best interests of the child to be considered include making sure the basic needs of the child are satisfied. These include the physical, psychological, emotional, and developmental needs of the child. The parents must also have the ability to prioritize the welfare of the child in reaching shared decisions regarding the child to ensure decisions are in the child’s best interest. The Court must find each parent is able to encourage and accept a positive relationship between the child and the other parent. A child aged 12 or older may give input with regard to where his or her primary residence for and the Court may also consider the geographical proximity of each parent’s residence. These factors along with any other factor the Court deems relevant, collectively equal the “best interests of the child” to be determinative in the custodial arrangement of a child during a divorce proceeding. Parents are incentivized to work cooperatively with each other, or risk being viewed in a manner that could cause the court to limit their participation in the lives of their children.

Utilizing facts and testimony in evidence, the Court’s decision relies on the parameters of the statute and is binding on parents until such time as a parent seeking to modify a child custody arrangement originating out of a divorce may file a modification petition. The Court that

granted the divorce generally retains jurisdiction over such modifications, unless the child has been moved to a different county. Both parties may consent to a change in the underlying parenting plan, however, if they do not, the person petitioning the Court must demonstrate a material and substantial change in circumstances that would serve the child’s best interests. A material and substantial circumstance has been defined to include a change in the marital status of either parent, job relocations, unemployment, medical conditions substance abuse, or abuse or neglect of the child by either parent.

Possession orders establish how much time the child spends with each parent.

Beyond the determination of which parent bears the responsibility for decision-making, the Texas code addresses when the child will spend time with each parent, known as a  possession order. The legislation presumes it is in the best interest of a child for a  “Standard Possession Order” to control, that the parents may have possession of the child,  whenever there is mutual agreement. In circumstances where parents are unable to agree,  barring scenarios where one parent’s behavior restricts them from seeing the child, Texas  Family Code 153.3171 provides the right to possession of language based on how close the parents live to each other in increments of 50 or 100 miles or less and more than 100  miles. For example, if parents live within 100 miles of each other, the non-possessory parent has the right to possess the child on the 1st, 3rd, and 5th weekends of each month,  Thursday evenings during the academic year, alternate holidays, and an extended period of time during the summer school recess. Judges have the ability to make a determination a  standard possession order is inappropriate after a trial. A “modified possession” order could allow for a parent to have possession on alternate weekends or no overnight visits for a parent.

Whether during the underlying divorce proceeding or during a modification petition,  sometimes parents are able to determine the terms of a parenting plan best suited for their family. Even if parents are able to agree to such a parenting plan, the Court must review the provisions of the agreement in light of the best interest standard. A court may review the parenting plan and approve it or determine the plan fails to meet the best interest standard. If the plan does not meet the standard, the Court may request the parties to revise and resubmit the parenting plan.

Just as parents do not take the decision to end a marriage lightly, nor does the Texas court system when putting in place custodial arrangements which have the ability to impact children until they reach adulthood. Central to every aspect of making decisions for the

child and how much time the child spends with each parent is what will have the best interest of the child at the forefront.

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