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Specialty tag(s): Child Custody, Visitation Rights, Parenting Schedules

How to Protect Your Right to Possession and Access in Texas

Ryan R. Bauerle | April 19, 2022

A custody battle is often the most dreaded aspect of a divorce for parents. The thought of spending less time with your children can be devastating, especially if you have concerns that your soon-to-be-ex is unfit to care for them.

Most of my clients recognize that having a positive and nurturing relationship with both parents is essential for their child’s self-esteem and well-being. However, even with the best intentions, the stress and negative emotions that can emerge from a heated custody battle can interfere with a parent’s ability to recognize the harm caused by ongoing parental conflicts.

Below are answers to some of the most frequent questions clients ask me about contested or complex custody issues.

How Does Child Custody Work in Texas?

Texas uses different terms for the custody process than many other states. In Texas, legal custody is called conservatorship and physical custody is called possession.

• Conservatorship – This ability of a parent or other caregiver to make decisions for a child, such as the medical care a child receives, where they go to school, what kinds of cultural experiences they’re exposed to, etc.
• Possession – The ability of a parent or other caregiver to house a child or spend time with them.

In any child custody case, the court’s primary concern is the child’s best interests.

What Are The Options for Reaching a Child Custody Resolution in Texas?

The outcome of your custody case will depend on the details surrounding your case.

For example, custody battles usually occur in congruence with a divorce. If you’re attempting to resolve your divorce out of court using a process like collaborative law or mediation, then you may choose to negotiate terms for custody with your co-parent and draft a parenting plan together.

Alternatively, if you’re litigating your custody battle in court, the court will make a definitive decision in your case after hearing arguments from both parties and reviewing evidence concerning the ability of both parents to act as caregivers.

Generally, courts advise parents to “settle” on a custody arrangement outside of the courtroom. That’s because when parents litigate custody, it can increase tensions between the parties and make co-parenting more difficult; however, in situations where the parents are estranged or strongly disagree on how to handle custody, litigating the matter in court may be the best path forward for both parties.

How Is Custody Determined in Texas?

Courts decide custody based on the best interests of the child – but how do Texas courts determine what is in a child’s best interests?

In situations where parties litigate the custody process, most courts consider the following factors during custody disputes:

• Any evidence that showcases the behavior of each parent with the child(ren) so far;
• Whether either parent shows themselves to be “unfit” to act as a caregiver in any way (has a record of abusive or neglectful behavior, abuses illegal substances, etc.);
• The living situation each parent can provide for the child(ren);
• The conduct each parent displays throughout the custody process towards each other and the court;
• The stability of each parent’s living situation, and the stability they can provide to the child(ren) as a result;
• The age of the child(ren) and their preferences, assuming they’re old and mature enough to have constructive input on the custody arrangement.

When parties litigate a child custody dispute, they can use several avenues to represent their caretaking capabilities to the court. In addition to presenting evidence to the court, parents can also take actions such as requesting a third-party parenting evaluation to increase their standing with the court.

Types of Conservatorships in Texas

In Texas, there are two primary types of conservatorships:

• Joint Managing Conservatorships (JMCs) – Most courts default to a JMC and encourage parents to use this type of conservatorship unless details such as an unfit parent or a parent who cannot provide a child with a stable living situation complicate the case. In a JMC, both parents can house the child (though not always for an equal amount of time), and both can make decisions for the child’s wellbeing. Because this type of conservatorship maximizes how much time the parents can spend with the child, many courts see it as the best way of encouraging a child to maintain a healthy relationship with both parents.
• Sole Managing Conservatorships (SMCs) – In an SMC, only one parent can make decisions for the child. The other parent may have visitation rights, meaning they can see the child, but they will not make decisions for them, such as what medical care they receive.

In summary, complex and contested child custody matters can be stressful, but it’s important to remember that the child custody process is designed to help protect your children’s best interests. By working with an experienced family lawyer, you can achieve a positive outcome and maintain a healthy relationship with your children.

Learn More

Ryan is a skilled litigator and strong negotiator; he regularly obtains favorable settlements without ever stepping foot in the courthouse. Ryan works with clients to evaluate the pros and cons of their options, including costs, to make sound and efficient decisions about moving forward. Ryan is Board-certified by the Texas Board of Legal Specialization in Family Law. He has also been recognized as a Super Lawyers Rising Star, 2020-2022, and named a Best Lawyers: Ones to Watch, 2020.

To learn more about how we can help you navigate complex child custody issues, please contact Ryan Bauerle at 214-473-9696 to schedule a consultation.

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