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Child Custody Resolution in Texas Divorce

Texas laws of child custody and visitation are complex, but the child’s best interest is the foremost concern.

Divorce alone is bad enough, but when minor children are involved, the stakes are as high as they come. The stress for a parent of facing the unknown future of the parent-child relationship after divorce, along with concern for children’s well-being, can be excruciating.

The major legal issues that must be decided concerning the children’s day-to-day lives concern custody and visitation. Custody – or with which parent the children will live and which parent will make important decisions for them – is formally called managing conservatorship in Texas. Visitation ­- or the right of the parent with which the child does not usually live to spend parenting time with the child – is called possessory conservatorship in Texas law.

Custody in Texas may be joint or sole, and when the parents are joint managing conservators together, they share decision-making authority, although certain types of decisions may still be given exclusively to one or the other. For example, one parent might have the power to make decisions about the religious upbringing of a child and the other the power to decide the child’s primary residence, with all other important decisions made together like those concerning medical and educational matters.

When a child lives solely with or more with one parent, the other parent is likely to have visitation rights (in Texas a possessory conservatorship or parenting time). This includes both time spent together and electronic communication. The parenting plan for the family should contain a visitation schedule that lays out how holidays, birthdays and vacations are to be shared, as well as evening and weekend times spent with the possessory conservator.

It behooves divorcing parents in Texas to try to come to a comprehensive agreement about custody and visitation (called a parenting plan) through negotiation because if they cannot hammer out a settlement, the issues of custody and visitation will have to be decided by the judge assigned to the divorce case in state court.

Even when parents do agree on a parenting plan, it still must be reviewed and approved by the divorce judge.

Typically, negotiations are conducted through the family law attorneys representing each party, but sometimes alternative dispute resolution methods can help. These include mediation (using a neutral third party to facilitate negotiation), arbitration (using a neutral third party as a decision-maker, whose decisions are either binding or nonbinding) or collaboration (using an agreement not to go to court, but to work together around the table with the attorneys and neutral experts to come to an agreement).

If the spouses cannot agree on custody and visitation, the judge will make these decisions. Texas public policy is to continue child contact with parents who can act in their children’s best interests; to keep kids in safe, stable environments; and to support parents in sharing parental rights and duties after divorce.

As in other states, Texas law directs the judge to always make the child’s best interests the highest priority in any custody determination. The judge has broad discretion in determining the particular child’s best interests, but when they are not the same as the parents’ best interests, the child’s best interests prevail.

If the child is at least 12 years old, the judge must interview the child about his or her custody and residential preferences if the involved parties or attorneys request it or if the judge wants to. If the child is under 12, the judge has discretion whether to interview the child when requested by these parties.

Texas custody is complicated; any parent facing these issues should consult an experienced family law attorney.