- Child custody laws
- The best interest of the child
- Factors considered by the court
- Modifying child custody
Child custody laws in Texas are broken up into two distinct categories: conservatorship (custody) and possession and access (visitation).
A court awards conservatorship and possession and access based on the parents meeting the requirements (no criminal record, financial and housing stability, and ability to meet the spectrum of the child’s needs) to provide for the best interests of the child.
What are the laws in Texas for child custody?
Conservatorship refers to the rights and responsibilities of parents to make decisions regarding their child’s schooling, health care, religious affiliations, and other parts of their life and development. Conservatorship can be carried out by one parent (known as sole managing conservatorship) or both parents (joint managing conservatorship).
The court considers the best interest of the child when determining whether to award one parent sole managing conservatorship or to allow both parents joint conservatorship.
Possession and access
"Possession and access" refers to physical custody and visitation rights. This relates to when parents have physical custody of their child or when they are allowed to visit. Within possession and access, there are two possible schedules: standard and extended standard. Both lay out how much time each parent will spend with the child.
Parents can agree to their own possession and access schedule. If the court feels that both parents will honor the terms, and this will not inhibit the child’s development, it may opt to honor the scheduling system worked out by the parents.
Texas courts give parents a lot of flexibility in determining when the child will stay with each parent and when the non-residential parent will have access (visitation rights) to the child. However, if the parents cannot agree on a schedule, the Texas Family Code has a “standard possession order” that stipulates when each parent will be with the child. The order also covers how far apart the parents will live from each other.
A court can change the terms of the standard possession order if it feels the order is not appropriate for a given case. For example, the court could restrict certain conditions of the possession order if the child's safety is in jeopardy. This could happen if, for example, one of the parents has a drinking problem. The court could mandate that the parent does not consume alcoholic beverages before they meet with the child.
Similarly, a court can issue what is known as a supervised possession order. In this case, a third party oversees access between the parent and child. This may occur if the court feels a parent should not be left alone with a child.
If a residential parent wrongfully denies access to the other parent to see the child in violation of the court’s order, this could lead to serious consequences for the residential parent.
The best interest of the child
The “best interest of the child” is a legal standard that courts use in many situations when determining how a family should proceed with raising a child.
This legal standard comes into play when a child’s custody (conservatorship) is contested by both parents. With the child's best interests at the top of mind, the court must decide which parent will retain conservatorship of the child, how visitation rights should be structured, and how child support payments should be made.
Texas law presumes that parents should have joint managing conservatorship. This means both parents have a say in major decisions related to their child’s life. In reality, however, this may not always be the case. In the event that joint managing conservatorship is not in the child’s best interests, the court can appoint one parent as the sole managing conservator. This may happen if the other parent’s ability to make responsible decisions for their child is called into question due to an issue such as an untreated substance abuse problem.
Factors considered by the court
To determine the best interests of the child regarding child custody, courts consider a number of factors. The factors may vary from state to state, but in Texas, they come down to some form of the following:
- The mental health of each parent
- The financial status of each parent
- The individual needs of each child
- The quality of the home environment
- The degree of parental guidance and stability a parent petitioning for conservatorship can provide
- Any pre-existing agreement between the parents
- A general overview of the conditions of the divorce and petition for conservatorship
The goal of the court is to make sure the child has ongoing and regular contact with parents who have demonstrated that they can reliably provide for the child’s upbringing and development. The court would also want to encourage both parents to have roles in raising their child, even after the marriage ends, to the extent that the parents can contribute to the kids' well-being.
It is important to note that having joint managing conservatorship does not mean both parents would have equal (or even near equal) time with the child, either in terms of possession or access.
Modifying child custody In Texas
It is possible to modify a child custody arrangement or engage in a SAPCR (Suit Affecting the Parent-Child Relationship) in Texas. The ability to do this depends on the kind of divorce you petitioned for.
To modify a conservatory arrangement, you must bring a modification suit to the court. There are two forms of modification suits: uncontested and contested.
To a court, your modification suit is uncontested if it can be completed by agreement with the other parent. In other words, both of you are in agreement about custody, visitation, medical support, and child support, and both of you are willing to sign the modification forms. A modification suit could also be uncontested by default. This means the other parent was served with the modification suit but did not file an answer in time or did not appear in court.
In a contested modification suit for conservatorship, the other parent files their own answer or a waiver of service, and they do not sign the modification order when served. Contested cases usually require attorneys to resolve the contested modification order.
Co-parenting? You've got this.
And our free download can help.
ReferencesChild Custody and Support. (February 2023). Texas State Law Library.
What Is a Possession and Access Order in Texas? Volunteer Attorneys Texas.
What Is a Possessory Conservator? (December 2021). WomensLaw.org.
What Is “Possession And Access” (Visitation)? (December 2021). WomensLaw.org.
Best Interest. State Bar of Texas.
Determining the Best Interests of the Child. Child Welfare Information Gateway.
Modifying a SAPCR. (February 2023). Texas State Law Library.