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FAQ

Texas Child Custody FAQs

At Goranson Bain Ausley, our family law attorneys are committed to guiding you through the custody determination process with compassion, knowledge, and purpose. Below are answers to common child custody questions.

Q: What is a Child Custody Evaluation?

The child custody evaluation is a tool used by the Court to investigate the circumstances of all parties and the children when parents are unable to agree to the conservatorship and/or the possession and access to the children. The evaluator will investigate and provide information regarding the strengths and weaknesses of each parent, the level of interparental conflict, parent-child relationships, and the children’s developmental, social emotional and educational needs.

If a custody evaluation is ordered, it’s important to have an experienced child custody attorney who understands the intricacies of custody proceedings on your team.

Q: What Are Child Custody Modifications and Enforcement?

Modifications to conservatorship arrangements and possession orders are possible, but the process is neither quick nor simple. Parents seeking changes in their existing custody arrangements must prove that:

• A child is twelve years of age or older and wishes to change their caregiving situation
• The circumstances (medical, financial, employment, marital status, etc.) of either parent or the child have changed in a material and substantial way
• The proposed changes are in the best interest of the child

Orders can also be changed if neglect, child abuse in all forms, violence, crime, or substance abuse become an issue for either parent. 

Retaining a child custody attorney will ensure that your rights (and the rights of your children) are vigorously protected.

Q: What Is The Primary Consideration in Determining Child Custody?

The best interest of the children is always the primary consideration of Texas Courts in determining child custody.

Q: What Does “Child Custody” in Texas Include?

There are two main components to child custody in Texas: (1) conservatorship and allocation of parental rights, and (2) parenting time with the child, which is called “possession”.

Q: What is Conservatorship?

There are two components of parental rights in the Texas Family Code: (1) conservatorship; and (2) allocating specific parental rights.

Currently, there is a presumption in the Texas Family Code that parents will be named as joint managing conservators of their children, which means that both parents will automatically have basic parental rights and certain decision-making rights regarding their children.

However, this presumption that parents will be named as joint managing conservators of their children can be rebutted. In some situations, Texas Courts will find that one parent should be named as a sole managing conservator of the children, and the other parents rights regarding the children should be limited.

Texas Courts will name a parent a sole managing conservator of the children when there has been family violence. Texas Courts will also name a parent as a sole managing conservator in some situations where the other parent’s judgment or functioning is impaired because of untreated mental illness, addiction, or other significant circumstances.

Q: What Will Be My Rights in Terms of “Parenting Time”?

Under Texas law, parenting time schedules that detail visitation for each parent are known as possession orders. Possession orders establish each parent’s right to “possess,” or visit with, their child/children.

Currently, Texas Family Code sets a standard possession order as follows: non-primary parents who live within 100 miles of their children have the right to possession on the first, third, and fifth weekends of every month, on Thursday evenings during the school year, on alternating holidays, and for an extended period of time (up to 30 days) during summer vacation.

If the parents live further than 100 miles apart, the weekend schedule may be reduced to one weekend per month, the midweek visit is canceled, the summer break is extended to 42 days, and a spring break is added.

Texas Courts will deviate from the standard possession order if it is not in the best interest of the children. Texas Courts will likely approve custom possession orders that parents have agreed upon, including equal-time of “fifty-fifty” possession orders.

Additionally, Texas Courts may deviate from the standard possession order when one a child is under three-years-old and it is assessed that the child needs more frequent contact with both parents.

Texas Courts will also deviate from the standard possession order when a child/children’s safety is a concern. In this situation, a judge[HB4]  can issue a supervised possession order that requires visits with non-custodial parents to be supervised by a family member or other third party.

Q: How Will Custody of the Children Be Decided?

If the parents agree on conservatorship of the children, allocating parental rights, and a parenting time schedule for the children, the judge will approve this agreement after the Judge confirms that the agreement is in the best interest of the children. 

In the parents cannot agree, then the judge will make custody decisions based on what is in best interest of the child considering all facts and circumstances of the parents and their children. 

In Texas, a child who is at least 12 years of age can speak to the judge in chambers about where the child would like to live; however, the judge is not bound by the child’s stated preference.

Q: What Parental Rights are Allocated as Part of a Child Custody Determination?

The parental rights that will be allocated between parents regarding their children are listed in Texas Family Code Sections 153.073, 153.074. and 153.132.

Parental rights must be allocated between the parents in a manner that is in the best interest of the children. If the parents can agree on how parental rights will be allocated, the Court will typically approve the agreement. If parents cannot agree on the allocation of parental rights, then this will be decided by either the judge or, in some limited circumstances, a jury.

There are basic parental rights, which include the right to access the children’s medical records, the right to attend the children’s doctor’s appointments and school activities, and the right to receive important information about the children from the other parent.

There are also “decision-making” rights regarding the children. These include:

1.     The right to make invasive medical and surgical treatment decisions for the children.

2.     The right to make psychiatric and psychological treatment decisions for the children.

3.     The right to make educational decisions for the children.

4.     The right to monthly receive child support, and to decide how to spend that support for the benefit of the children.

5.     The right to apply for passports for the children.

These “decision-making” parental rights can be awarded exclusively to one parent, to both parents “by agreement”, meaning the parents have to agree before a decision is made, or to both parents independently.

Another important parental right is the right to determine the children’s primary residence. It is possible that neither parent has this right only if the parents agree. Parents will typically agree with this when the parents have also agreed to a fifty-fifty parenting time schedule for the children or other custom parenting time schedules. Additionally, when parents agree that neither parent will have the exclusive right to designate the primary residence of the children, parents will typically agree to a relatively small geographic area within which both parents will live, so that it is relatively easy for both parents to see the children and exercise their parenting time.

Q: Will the Court Impose a Geographic Restriction for the Children’s Primary Residence?

It is the public policy of the State of Texas to assure that “parents will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child, to provide a safe, stable, and non-violent environment for the child, and encourage parents to share in the rights and duties of raising their children after the parents have separated or dissolved their marriage.’ (Section 153.001, Texas Family Code)

In most cases, if parents live in close proximity to each other at the time the divorce or child custody case begins, then the Texas Court will impose a “geographic restriction”, which will require both parents to live within a certain geographic area after the case finalizes.

A common geographic restriction that Texas Courts will impose is the County the divorce or child custody lawsuit is filed into and “contiguous counties”. However, Courts may order a smaller or larger area for the geographic restriction if the facts of the case support a different geographic restriction.

It is not common for a Court to order that there not be any geographic restriction within which the parents must live within. This may happen, however, if parents already live far apart at the time that the divorce or child custody case is filed, if one parent has been uninvolved with the children, or if there has been a history and pattern of family violence.

Q: I Am the Primary Parent and I Want to Relocate – Is This Possible?

Typically, Courts will impose a relatively small geographic restriction and will not allow for parents to re-locate post-divorce. The reasoning is that if one parent moves away with the children, it will dramatically impact the other parent’s ability to have a relationship with the children.

The Court will, however, allow for a parent to re-locate with the children if the Court assesses that relocation is in the best interest of the children. This is somewhat rare, but not impossible.

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