What’s Best For Children
Determining child custody in a divorce can be an emotional process, and because of the drain it can have on you physically, mentally, and emotionally, it’s important to have an understanding of how custody laws work in Texas. Knowing the law can give you an insight into how your case might go and can bring you peace of mind. Here are the basic tenets of Texas law as it pertains to child custody.
Before getting into the specifics of Texas law, it is important to note a key distinction in the terminology used. While the more common term thrown around today is “custody” and most people would understand what that means, Texas law changed to use “conservatorship” in the hopes of removing the negative connotation associated with the word “custody.” Though the term is different, the definition is essentially the same.
Similarly, more familiar terms such as “legal custody” and ``physical custody” were replaced with “managing conservatorship” and “possessory conservatorship,” respectively. The terms “parenting time” and “visitation” were replaced with “possession and access” yet still maintain similar definitions.
Managing and Possessory Conservatorship
When determining custody in Texas, there are two types that will be awarded: managing conservatorship and possessory conservatorship. Managing conservatorship refers to the decision-making power a parent has on behalf of their child as it relates to healthcare or similar areas, whereas possessory conservatorship refers to which parent the child resides with.
Texas code typically presumes that both parents should share managing conservatorship, also known as joint managing conservatorship. This allows both parents to maintain the right to make decisions on behalf of the child. However, if the situation warrants a sole custody arrangement, this may be awarded if it meets the child’s best interests.
Texas code does not give specifics as to awarding possessory conservatorship, as it is initially up to the parents to create a possession and access schedule. However, if the parents cannot agree on a schedule, then there is a “standard possession order” that gives a basic schedule for parents to follow. Many often use the standard possession order as a starting point in crafting their own possession and access schedules.
When conservatorship is actually determined, several factors play a role when the judge makes the decision. The Texas Supreme Court case Holley v. Adams resulted in a list of factors used by judges when making conservatorship decisions. These factors include the following:
The physical, mental, and emotional needs of the child, both current and future.
The ability of each parent to follow through on parental duties.
The desires of the child (should the child be of age to make a rational decision).
The stability of each living situation.
The presence of any danger to the child, both current and future.
The plans that each parent has for the child if granted conservatorship.
Any actions taken or not taken that may indicate a parent does not have the proper relationship with the child.
Any reason for those actions or non-actions that the parent may have.
The number one determining factor in any custody case is that the arrangement must serve the best interests of the child. The courts must ultimately make their custody decisions based on this standard.
What If My Custody Order No Longer Works For Me?
Life brings about many changes over time, and sometimes those changes mean that your custody order may not work as well as it once did. If that situation arises, you are allowed to seek a modification to your existing order.
Texas courts will only grant a change to a custody order provided that the change is in the best interests of the child and meets one or more of the following criteria:
The circumstances of the conservator, child, or other person impacted by the custody order have changed both materially and substantially since the order was initially signed.
The child has expressed to the court a preference as to which parent they would like to live with (provided that the child is at least 12 years old).
The parent with primary conservatorship voluntarily releases the right to provide primary care for the child to another person for at least 6 months.
If you are unsure if your situation meets one of these criteria, it’s important to speak with an attorney who can provide the answer.
Enlist the Assistance of a Texas Custody Attorney
Whether you are getting a divorce and are working through the custody arrangement or have had something come up where a modification may be needed, getting help from an attorney capable of handling your case is important. At Verner Brumley Mueller Parker, we understand that custody cases are filled with ups, downs, and various emotions. You may feel all alone in your battle, but know that we are right there with you and are ready to help you.
To speak with a member of our team, call us at (214) 225-6766 or visit us online.