Understanding Child Custody Through the Divorce Process

By: Hayley Collins Blair

Mother and daughter hugging

Parents going through the divorce process often do not initially agree on custody arrangements for their children. 

In Texas, “custody” is actually comprised of several different parts, which include parental conservatorship, allocation of parental rights, and possession or parent-time, which are discussed in more detail below. These components of custody also relate to child support and other child-related issues that are determined in divorce cases. 

In most divorce cases, it will be best for the family if parents are able to reach agreements on custody. Agreements can often be achieved when both parents work with experienced divorce attorneys and participate in the settlement process, which may include mediation or another alternative dispute resolution process.  

Before parents can decide what child custody should look like for their family, it is important for parents to understand the components of child custody and the different options they have.  

Physical Custody of the Child

In Texas, physical custody of the child is called “possession”. It is not common for one parent to have exclusive possession of a child. Rather, it is presumably in the best interest of children that both parents have some possession of the child.  

More specifically, the Texas Family Code includes a rebuttable presumption that the Standard Possession Order is in the best interest of children, as long as both parents are able to provide a safe, stable, and non-violent home environment for the children.  

The Standard Possession Order includes a parenting time schedule for parents that live in close proximity to each other, and also for parents that live over 100 miles apart.  You can find more specific information regarding the Standard Possession Order here.  

For many families, the Standard Possession Order may not be the best parenting time schedule for their children. There are also many custom, equal-time parenting schedules, or “50-50” parenting time schedules that parents can consider.  

Additionally, there are custom schedules for doctors, nurses, police officers, and other parents who work in shifts instead of the typical nine-to-five work schedule.  

In some situations, a parent’s right to possession of his or her children be limited more limited than the Standard Possession Order, or even supervised. This occurs most often when there has been a history of family violence, abuse, or neglect, or when the parent has an impairment such as mental illness or addiction that impedes that parent’s ability to provide a safe and stable home environment for the children. 

Can I Relocate to a New Geographic Area After Divorce?

In Texas, the Courts will typically order a geographic restriction for the primary residence of the children. This means that after the divorce, the parent with the right to designate the children’s primary residence must live within the designated geographic area for as long as the other parent lives within this geographic area.

Most commonly, the geographic restriction will be the county of the primary parent’s residence at the time of divorce. In some situations, it will be the county of the primary parent’s residence and one or more adjoining counties. The designated geographic area is typically not much larger than this. However, it may be best for the geographic area to be larger, if at the time of divorce, the parents already do not live in close proximity to each other, or if other specific factors are present.

The designated geographic area is typically limited to a relatively small area because it is viewed as best for children for their parents to live in relatively close proximity to each other. This will allow for both parents to attend the children’s school activities and extracurricular activities, and for both parents to see their children on a more frequent basis.

If you are a parent who is interested in 50-50 parenting time, you should plan to live in the same school district or city as the other parent. This will minimize disruption in your children’s daily routines and minimize travel time for the children between their parents residences and when going to school and their activities. 

Legal Custody

Other aspects of custody include parental conservatorship and the allocation of parental rights, which will determine who is making decisions for children post-divorce.

There are two types of parental conservatorship in Texas: joint managing conservatorship and sole conservatorship.

Additionally, there are many parental rights that will be allocated to one or both parents, including decision making regarding the children’s physical health, mental health, and education.

Full Legal Custody – Sole Conservatorship

In Texas, parents are most commonly named as joint managing conservators of their children. However, in some situations, one parent may be named as the sole managing conservator, and the other parents right to information regarding the children and to make decisions regarding the child will be limited.

A parent will be named as a sole managing conservator of the children if there has been provable family violence, child abuse, or neglect.

A parent may also be named as a sole managing conservator when the other parent has an impairment, and that parent therefore cannot be relied on to make decisions that are in the best interest of the children. Such impairments include an untreated mental illness and addiction.

Shared Legal Custody – Joint Conservatorship

Even when parents are named as joint managing conservators of their children, it is common for one parent to have certain parental rights exclusively.

Typically, one parent will have the exclusive right to determine the primary residence of the children and the exclusive right to enroll the children in school. Additionally, it is common for one parent to have the exclusive right to receive child support.

When parents are joint managing conservators, it is typical for both parents to be awarded certain parental rights, including:

  • The right to make invasive medical and surgical decisions on behalf of the children;
  • The right to make medication decisions for the children;
  • The right to make mental health treatment decisions for the children;
  • The right to make educational decisions on behalf of the children; and
  • The right to make legal decisions on behalf of the children.

However, in some situations, even when parents are named as joint managing conservators, one parent may be exclusively awarded one or more of these important rights.

Factors Constituting the “Best Interests of the Child”

In Texas, the best interest of the child is considered the paramount consideration when deciding issues of conservatorship, parental rights, and possession.

Texas Courts are given wide latitude in determining the best interest of the child.

Texas Courts have identified factors that should be considered when deciding what is in the best interest of children, including:  

  • Which party will best provide for the children’s physical, psychological, and emotional needs now and in the future;
  • Whether either party poses a physical or emotional danger to the children now or in the future;
  • The stability of each party’s home;
  • Each party’s plans for the children;
  • Each party’s ability to give the children first priority and reach shared decisions in the children’s best interest;
  • Each party’s parenting skills;
  • Which party was the primary caregiver before the suit;
  • The children’s wishes;
  • Where the parties reside in relation to each other;
  • If divided or split custody is requested i.e. two or more children are separated and follow different parenting-time schedules, what effect separation will have on the siblings;
  • The extent to which each party can encourage and accept a positive relationship between the children and the other party;
  • Whether either party has knowingly made a false report of child abuse;
  • The need for measures to protect the children from being abducted by a parent to a foreign country;
  • Each party’s present fitness to care for the children;
  • Whether either parent has a drug or alcohol problem;
  • Whether either parent’s sexual conduct renders that party unfit to act as a parent; and
  • Whether either parent has illegal, immoral, or harmful beliefs that could impact the parent’s ability to provide a safe and stable home environment.

These factors should be applied to each family’s specific situation to determine what is in the best interest of the children post-divorce. For example, a child with a mental health diagnosis may require regular visits with psychologists and to receive at least some special education assistance in school. A parent with a job that requires weekly travel may not have the best ability to meet these additional needs of this child.

While Texas Courts can consider many factors, which are identified above, the Courts are prohibited from considering the following factors when determining the best interest of the child:

  • A parent’s marital status;
  • The gender of either parent or the child;
  • A parent or child’s race or ethnicity;
  • A parent’s religious beliefs (with certain limited exceptions); and
  • A parent’s immigration status.

The Wishes of the Child

In accordance with the Texas Family Code, the Judge must interview a child who is twelve year of age or older when a request is made by a parent in a divorce or child custody case. This interview of the child will take place in the Judge’s chambers (office); the interview of the child will not take place in open Court. Both parents have the right to request that an official transcript of the Judge’s interview of the child is made.

While it is a parent’s right to request this type of interview, it is often not viewed favorably  by the Judge. This is because these types of interviews typically place a lot of stress on children and are remembered as negative experiences by children where they feel they were made to choose between their parents, which they feel is a no-win situation. Many children leave these required interviews with significant guilt, and additionally feelings of anger, sadness, and shame.

Additionally, while Judges are required to interview children who are twelve years of age or older upon a request by a parent, that Judge does not have to follow the child’s verbalized wishes regarding parenting time that are made during the interview, and often won’t. This is because many Judges are sensitive to conflictual parental dynamics and may assess that the child feels more pressure from one parent or has received coaching from one or both parents regarding what to say in the interview. Additionally, often times, and especially for teenagers, children will want to spend more time with the parent who is “more fun” or has less rules for the child. Therefore, what the child desires and what is best for the child sometimes does not line up.

If a parent is contemplating requesting that the Judge interview their child or children, the parent should first consult with an experienced attorney regarding whether such request will truly be best for that parent’s goals in their divorce or child custody case.

There are other ways that a child’s wishes can be heard by the Judge that do not require a Judge interview. These include:

  • Appointment of an Amicus Attorney;
  • Calling the child’s individual therapist to testify in Court; and
  • Child custody evaluation.

Parents should strategize with their attorney to determine the best option for their case in which the child’s wishes can be considered.

Additional Texas Child Custody Resources

Learn More

Hayley’s practice covers all facets of family law matters, with an emphasis on complex property and child custody cases. She guides her clients to reach an efficient and constructive resolution. Hayley was listed as a Best Lawyers by D Magazine in 2018, 2021, and 2022. She is Board Certified in Family Law by the Texas Board of Legal Specialization.

If you have questions about divorce and would like to learn more about child custody, please contact Hayley Collins Blair at 214-974-8722.

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