How Is Child Custody Determined in Texas? Who gets the kids?

Author: attorney on staff October 5, 2017

Child Custody is a sensitive issue handled by the Texas Family Courts. Texas courts will always prefer a joint managing conservatorship between the parents, however that may not always be the case. Let’s dive in to what factors the court considers while determining child custody.

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Contents

Types Of Child Custody

Texas courts refer to parents as conservators. The Texas Family Code outlines the following custody categories: Sole Managing Conservatorship in which one parent makes all important decisions in the child’s upbringing; and Joint Managing Conservatorship in which both parents make all important decisions in the child’s upbringing. A family law judge will decide on the type of conservatorship unless the parents can agree on a custody plan; the plan will have to be approved by the court after being reduced to a written agreement.

Appointing Managing Conservators

Section 153 of the Texas Family Code describes whom may serve as a conservator of the child:

(a) In a suit, except as provided by Section 153.004, the court:

may appoint a sole managing conservator or may appoint joint managing conservators; and
if the parents are or will be separated, shall appoint at least one managing conservator.

(b) A managing conservator must be a parent, a competent adult, the Department of Family and Protective Services, or a licensed child-placing agency.

(c) In making an appointment authorized by this section, the court shall consider whether, preceding the filing of the suit or during the pendency of the suit:

a party engaged in a history or pattern of family violence, as defined by Section 71.004;
a party engaged in a history or pattern of child abuse or child neglect; or
a final protective order was rendered against a party.

As described above, the court will consider any factors that indicate family violence, child abuse or neglect, and whether a protective order was rendered against either parent.

Although Texas courts tend to favor the appointment of a joint managing conservatorship in order to encourage an amicable relationship between the child and the parents, the court considers various factors that may deviate from a joint managing conservatorship.

Best Interest Of The Child

It is unlikely to discuss child custody in Texas without discussing the “best interest of the child”. Section 153.002 of the Texas Family Code states, “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” This is the single most important factor considered in Texas Courts.

Other Factors Considered In Determining Child Custody

Texas Family Courts will also give great weight to the following while deciding child custody: past parental involvement in the child’s life; the cooperation of parents with each other; household stability of each parent; continuity of the child’s life prior to divorce; the age of the parents; distance in geography between parents; past abuse; and the child’s wishes.

It is important to note that the Texas Family Code allows a child 12 years of age or older to be interviewed in chambers “to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence;” however the ultimate decision is left to the court’s discretion.

Potential Issues in Child Custody

Child Custody battles tend to be problematic. Before filing for child custody it is monumental to ensure that the jurisdiction of the Texas family court is correct. Issues may arise in any of the factors listed above that are used to determine child custody. In order to prevent issues from arising, it is best to consult a lawyer that will able to discuss your options and concerns.