Child Custody in Texas: Everything You Need to Know

• Different types of custody
• Quick glossary
• Child custody process
• Step-by-step guide
• Mother vs. father 
• Texas child custody fees
• What are the requirements to get custody?
• Visitation
• References

There are many things to know about child custody in Texas. Below, we cover everything you need to know about current child custody laws in Texas, including the different types of custody, how the process works, how much you can expect to pay, and what you can expect to happen.

What are the different types of custody in Texas?

In Texas, there are two main types of parental custody: legal custody and physical custody.

A parent (or parents) with legal custody have the prerogative to raise their child and be responsible for making decisions about the child’s upbringing and day-to-day life. This includes medical decisions, which school the child attends, applicable religious practices, and other activities. 

A parent with physical custody has possession of the child. In the state of Texas, a parent with physical custody is the “possessory conservator." The court will assign the child to live with that parent. 

Conservatorship

In Texas, custody is more properly known as conservatorship, but many people use the simpler term custody.

A conservatorship can be carried out in different ways. In a sole managing conservatorship (commonly known as sole custody), one parent is tasked with making decisions regarding the child's school, religious affiliation, health care, and all aspects of life. In a joint managing conservatorship (commonly known as joint custody), both parents make those decisions.

Quick glossary

•   Conservatorship: In Texas, this is the legal synonym for custody. Note that the term may have a different meaning in other regions.
•   Possessory conservatorship: This means physical custody of the child. The person with this right is the residential parent.
•   Managing conservatorship: This is legal custody of the child.
•   Sole managing conservatorship: One parent makes decisions for the child and has physical custody.
•   Joint managing conservatorship: Both parents share decisions and physical custody. The child’s time isn’t necessarily split evenly in this situation.

The best interests of the child

The family court assumes responsibility for determining the best interest of the child. This is how the court makes decisions regarding the rights and obligations of parents. Many factors contribute to this process.

In Texas, when a parent has physical custody of their children or visits their children, this is referred to as possession and access. Within possession and access, Texas has two further categories, known as standard and extended standard. These categories lay out the amount of time each parent spends with the child.

In cases of uncontested and amicable divorce, it's possible for parents to agree on a schedule that aligns with their needs. If a court believes such a plan would benefit the development of the child, and both parents can be trusted to abide by their schedules, it may grant the request.

Similarly, if the court feels that the parents’ schedules would not be helpful for the child, it could deny the parents’ request and reinstate the typical standard and extended standard plan.

Parenting class

Texas courts often dictate that both parents go through a parenting class when divorcing. This class educates parents on the trauma that can occur due to divorce. 

There are usually both in-person and online options, making it convenient for parents to complete the requirement. 

Suggested: Why Do I Have to Take a Parenting Class?

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How does the child custody process in Texas work? 

In Texas, the child custody process begins when one parent files a petition for conservatorship. The parent who does this must have the other parent officially served with the petition. The other parent has 20 days to make their answer known to the court. However, they could also waive the service if they don’t intend to contest any of the terms in the petition. 

In Texas, an uncontested child custody case is one where both parents agree on a custody schedule. If the parents cannot agree, the court will consider it a contested custody case and refer it to mediation. During mediation, the spouses and their lawyers work with a third-party mediator to come to a resolution regarding custody plans. 

If both you and your spouse are confident about the court’s decision, a voluntary compromise could end the child custody case quickly and easily. 

Read: Child Custody Mediation and How to Win Child Custody Mediation 

Step-by-step guide to the divorce filing process 

These steps apply to people who want to wrap child custody arrangements into the break-up of a marriage:

1. Determine where to file for divorce

To file for divorce, you or your spouse must have lived in Texas for the last six months, and you must choose a courthouse in the county where you or your spouse have lived for the past 90 days. If you file in the wrong county or don’t meet these residency requirements, the court will dismiss your case.

2. Fill out starting forms

Paperwork begins the divorce process. The following documents are required:

•   Original Petition for Divorce (Set B)
•   Civil Case Information Sheet
•   Exhibit: Out of State Party Declaration (if you or your spouse lives outside of Texas)

Fill out each form completely using a pen with blue or black ink. Make two copies of each form.

3. Prepare for filing fees

To start your case, you must pay a filing fee. In Texas, courts can set their own fees, and they can vary. Call the courthouse in your county and ask how much your filing will cost. If you can’t afford it, you have options.

Fill out the Statement of Inability to Afford Payment of Court Costs form and bring it to the courthouse when you file. If it’s approved, you won’t have to pay the entire fee to file your case.

4. File your forms

Go to the courthouse you’ve chosen with your completed forms. At the clerk’s office, turn in the documents. Ask if the county has standing orders or other documents you must fill out to file your case. Pay a filing fee, and the clerk will give you a case number and court number, stamp your copies, and give you two copies back.

5. Notify your spouse

If you and your ex have already discussed your divorce and custody plans, you can hand your spouse the official documents along with a Waiver of Service Only (Set B) form (blank). Your spouse must sign this document in front of a notary and give it to the clerk at the courthouse.

If you can’t collaborate with your spouse, your notification steps are slightly different. Gather all of the papers your spouse must be served with, along with a Respondent’s Original Answer (Set B) form (blank), and give them to an adult who’s unconnected to your case. Give that person a Return of Service form. Once the adult hands the documents to your spouse, that server must give the completed form to the clerk at your courthouse.

Mother vs. father: Does one spouse have more rights than the other?

In Texas, family and divorce courts do not favor a mother over a father. The Texas Family Code states that judges should “consider the qualifications of the parties without regard to [...] the sex of the party.”

Judges are directed to rule in the best interest of the child or children. So, if the father has demonstrated a better aptitude for safeguarding the child’s well-being, the mother will not get more custody rights in the divorce. 

Texas child custody fees 

In Texas, filing for custody or conservatorship can entail filing fees, fees for the issuance and service of process, fees for copies of all documents, fees for a court-appointed professional, and fees charged by the court reporter or the clerk for preparation of the appellate record.

Even if you don’t retain the services of an attorney, these fees can run upwards of $2,000. You may be able to request a waiver for some or all of the fees, depending on your financial need.

What are the requirements to get custody of a child in Texas?

Under Texas law, both parents are expected to share custody unless one parent is proven or determined to be unfit. 

To get sole custody of a child in Texas, a spouse can file for possessory conservatorship (physical custody) or managing conservatorship (legal custody).

Sole physical custody entails your child (or children) living with you all the time. Sole legal custody means that you have the following rights:

• To decide where your child lives
• To decide the health care they get
• To receive and spend support payments
• To determine how to handle any legal issues concerning them
• To decide where they go to school and/or church
• To apply for and keep their travel documents
• To consent to or decline applications for military service
• To make financial decisions for them

To get full custody of your child, you must petition the court to terminate the other parent’s custody rights. This means you have to meet a higher burden of proof by showing the court that it would be in your child’s best interests to do so.

You would also have to show the court that your child has specific needs only you can meet.

Additionally, if the other parent has demonstrated abusive or neglectful behavior toward you, your children, or anyone else, documentation or evidence of this would be required to gain custody of your child.

The other part of this is petitioning the court to terminate the other parent’s rights. You would have to show that the other parent endangered the child through abandonment, neglect, or physical, emotional, or sexual abuse – or that they committed certain criminal offenses, engaged in substance abuse, or have had their custody rights for other children from previous relationships similarly terminated.

Police reports, court and medical records, and past testimony can all serve as evidence to get sole custody of a child in the state of Texas. 

What are the different types of visitation orders?

The different types of visitation orders in Texas are based on the prime guideline for divorce courts: to determine and maintain the best interests of the child.

In a joint managing conservatorship, both parents have some say in how the child is raised. In a sole managing conservatorship, only one parent has that prerogative, and the other parent has to accept those terms.

When it comes to visitation, the other parent will have the right to have the child or children stay with them for a set period of time. This is the case when the child lives with one parent, known as the residential parent. Visitation schedules are typically set to every other weekend, every other holiday, every other vacation, or a similar schedule.

In a sole managing conservatorship, the other parent’s right to visit with their child is restricted. This is usually employed when the parents do not have a good relationship.

Divorce courts in Texas prefer joint managing conservatorship, believing that collaboration between parents is best for the child’s development. Parents who make it clear that they can work together for their children stand the best chance of being declared joint managing conservators.

Even as the child stays with one parent, the other parent will be allowed to spend a good amount of time with the child. If the other parent can live nearby (a good sign in the eyes of the court), the other parent might then be able to spend an equal amount of time with the child as they do with their residential parent. 

What are the different ways to get a custody and visitation court order?

To get a custody and visitation (conservatorship and access) court order, you must submit your proposed parenting plan to the court for approval. If you and your ex agree on the plan, the court will likely approve it.

On the other hand, if you and your ex cannot agree on a parenting plan, the court will determine the conservatorship and access order for you based on your and your ex’s income, housing arrangements, health, and other factors to meet the best interests of your child.

What are child custody laws in Texas for custody and visitation?

The Texas Family Code sets out child custody laws for custody and visitation (conservatorship, and possession and access). There are many different aspects that go into making custody and visitation decisions, but the court will always consider the best interests of the child first.

The “best interests of the child” is more of a legal principle than a legal standard based on past family and divorce cases that have guided Texas courts. The principles include the following:

• How old the children are and their health
• How old the parents are and their health
• If either the children or the parents have special needs
• The stability of the residential parent’s home
• The child’s relationships with their other siblings and extended family
• Whether the child is old enough to express a preference for the parent they would like to live with
• If either parent has a history of domestic violence
• Where the parents live and work and how that impacts the amount of time they can spend with the child
• The child’s educational needs
• How much each parent is, should be, and wants to be involved in their child’s life
• Other factors as deemed relevant by the court

How can you change a custody and visitation order in Texas?

If you want to adjust your conservatorship and possession and access order, you must file a petition to modify the order with the same court that issued the order. Evidence that supports your desire for modification must be provided.

For example, if your ex has improved their behavior and is now a more responsible co-parent, you should have proof of this. On the other hand, if your ex’s behavior has worsened and they present a danger to you or your children, you must prove this.

Even if you file a modification case, the existing order will stay in effect until the court signs the modification. You would be liable to face penalties, including loss of conservatorship, if you were to stop following the existing order before a modification was issued. Furthermore, your modification petition could be dismissed.

You can use DIY forms to file a modification case. This works best in uncontested cases and default cases (where your ex does not reply to the court and effectively defaults on their participation). You can also get help from an online divorce platform like Hello Divorce to simplify the process for you.

Read: Why Hello Divorce Is Better Than Other Online Divorce Platforms

Modification cases can be filed by either parent. If your child has been living with you for a minimum of six months, you can file to modify a child support order. If your child has not been living with you for less than 90 days before the date you file the motion for modification, you can still file to modify the child support order.

References