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What Does Primary Custodial Parent Mean in a Texas Divorce?

Sarah Aminzadeh Milinsky | June 30, 2022

In divorce and child custody disputes, we often see that a client’s primary objective is to be awarded “primary custody” of their children. Though this phrase is used frequently by clients, attorneys, and judges, many are surprised to discover that the term “primary custody” is nowhere to be found in the Texas Family Code. Rather, “primary custody” has become a legal phrase among attorneys and judges to refer to the exclusive right of one parent to designate the primary residence of his or her child(ren). Many parents believe that if they are not awarded the right to determine the child’s primary residence that they will rarely see their children. Fortunately, this is incorrect.

What is the difference between Conservatorship and Possession?

Under the Texas Family Code, child custody is divided into two categories: (1) conservatorship, and (2) possession. Conservatorship describes a parent’s right to make important decisions on a child’s behalf, while possession is a parent’s right to physical custody of his or her child(ren). Depending on the circumstances, these rights can be granted to parents either jointly or separately. Some of these rights include the right to consent to medical, dental, and surgical treatment involving invasive procedures, the right to consent to psychiatric and psychological treatment, and the right to make decisions concerning the child’s education.

When determining conservatorship, the Texas Family Code requires that judges presume that it is in a child’s best interests to have both parents be named “joint managing conservators.” and share the decision-making rights described above. However, it is common practice amongst judges to give only one parent the right to decide the child’s primary residence. In other words, the judge chooses only one parent to have the ultimate say-so on where the child will live. This exclusive right is what attorneys refer to as “primary custody.” Whichever parent is not granted this right is usually deemed the “non-custodial” or “non-primary” parent and is given possession of the child under the Standard Possession Order.

It is important to note, however, that the Collaborative Divorce process and other alternative dispute resolution options allow divorcing parents to structure a parenting plan without either parent being designated as the “primary parent.” In fact, the Texas Family Code provides a statutory alternative in which the right to designate the child’s primary residence remains silent and is given to neither parent. Instead, the child’s primary residence is designated within a specified geographic area, such as the county in which the child(ren) will live or the school district in which the child(ren) will attend. This alternative often mitigates the primary custody “battle” and allows for parents to share parenting rights and duties in an equitable manner via agreed upon parenting custody schedules after divorce.

What is the Standard Possession Order in Texas?

The Standard Possession Order (SPO) remains the rebuttable presumption in Texas divorce and child custody cases. The SPO is an order issued by the judge that outlines when the non-custodial parent will have possession of his or her child(ren). The non-custodial parent’s possession under the Standard Possession Order is outlined in the table below:

How does the Expanded Standard Possession Order differ from the Standard Possession Order in Texas?

Since September 1, 2021, the Texas Family Code provides for a new standard possession order that offers more visitation for non-custodial parents who live within 50 miles of the custodial parent. Under this Expanded Standard Possession Order, the Texas Family Code allows the non-custodial parent the option to expand visitation periods by starting earlier (e.g., Thursday when school is dismissed) or ending later (e.g., Monday when school resumes). The non-custodial parent’s possession under the Expanded Standard Possession Order is outlined in the table below:

Am I limited to the “Standard” or “Expanded”  possession schedule?

Through creative processes such as mediation or collaborative divorce, you have the opportunity to further customize your possession schedule. However, the ultimate purpose behind the SPO and Expanded SPO schedules are to provide stability and routine for children during the school year. Though judges have wide discretion in picking a schedule if the parents cannot agree on one, they often award the SPO or Expanded SPO schedule to one parent due to the presumption that it is in the child’s best interest.

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An advocate for problem-solving approaches, including Collaborative Divorce, Sarah uses creativity and interest-based negotiations to resolve family law and divorce matters without unnecessary cost and conflict. Helping clients act with logic rather than emotion to achieve their goals is a primary emphasis in her practice. Sarah graduated cum laude from the University of North Texas Dallas College of Law.

If you have questions about possession schedules or want to learn more about what the “primary custodial parent” means in a Texas Divorce, please contact Sarah Aminzadeh Milinsky at 214-373-7676.

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