Child Custody in Texas Divorce

In Texas courts and in the laws regarding children, the term “custody” is not used. Instead, issues regarding custody are referred to as “conservatorship.” Conservatorship is the term used to define all of the legal rights and responsibilities of a parent.

There are two types of conservatorship: Managing Conservatorship and Possessory Conservatorship.

A Managing Conservator has all of the rights and duties a person would typically associate with the rights and duties of a parent including the right to make decisions regarding the child’s education, medical care, religious upbringing, involvement in activities, etc. and the duty to support the child and provide for the welfare of the child.

A Possessory Conservator has the right to visitation with the child, the duty to provide support for the child, and the duty and responsibility to provide for the child’s welfare while the child is in that person’s possession.

All parents have a duty to support the child, to provide food, shelter, clothing, education, and medical/dental care for the child, regardless of whether or not the parent is a managing conservator or possessory conservator.

In Texas, the law says that both parents should be appointed Joint Managing Conservators with equal rights and duties. A parent is typically only appointed as a possessory conservator of the child in instances of family violence, child abuse, or other extreme circumstances. In order for a parent to be named a possessory conservator instead of a managing conservator, the court must find that appointing that parent as a managing conservator would “significantly impair the physical health and emotional development” of the child. Therefore, in most cases, both the mother and the father are appointed Joint Managing Conservators.

Although the parents are appointed Joint Managing Conservators, Texas law requires that one parent be appointed as the “primary” conservator, with the exclusive right to establish the residence of the child. This means that one parent must be named in the divorce as the parent with whom the child will primarily live.

Residency Restriction

Although the court will appoint one parent as the primary conservator, the parent with whom the child will live primarily, the court will almost always impose a “residency restriction.” This prevents parents from moving the child far away from the other parent and ensures the other parent will continue to have frequent contact with the child.

Generally, the court will say that the primary conservator must live either within the current county of residence or the county of residence and contiguous counties. This means the parent could move to any other county that touches the current county where the child and parent live.

Visitation

The primary factor a court must look at in determining the visitation schedule for a parent is what is in the best interest of the child.

Depending on the circumstances of the children and the parents, as well as the distance between the parents, visitation arrangements can vary. However, generally speaking, most courts will order the visitation schedule called the “Standard Possession Order,” or SPO, as outlined in the Texas Family Code.

Essentially, the SPO allows for visitation between the child and non-primary conservator every other weekend, every Thursday night, and alternating holidays. There is also an extended summer visitation for the non-primary parent in the SPO. This schedule is very specific and detailed and will be clearly written in all divorce decrees. However, the Standard Possession Schedule also typically allows for both parents to agree to any other days/times not outlined in the SPO. The divorce decree will usually state that the non-primary parent will have visitation with the child at times and days as “mutually arranged and agreed” between the parents. If there is no agreement to have a different visitation schedule, then the Standard Possession Order as outlined in your divorce decree will become your scheduled visitation.

Texas law promotes frequent contact between children and their parents and encourages both parents to work together for the best interest of the child or children, so most divorce decrees allow the parents to have the flexibility to change their schedule as needed to accommodate a child’s schedule for extra-curricular activities such as sports, dance, etc. So the main thing to keep in mind is that both the mother and father need to work together to make a schedule that is in the best interest of each individual child.