Child custody in Texas: what conservatorship means for you and your children
Texas calls custody "conservatorship." Texas law starts from the presumption that naming both parents joint managing conservators is in the child's best interest, unless there's a history of family violence. Joint conservatorship means the parents share rights and duties. The schedule for time with each parent is set separately, often using the Texas standard possession order, and it may or may not be equal.
When your children are at the center of it
Of all the fears that come with a separation, fear about your children is often the heaviest. Where will they live? Will I still see them every day? Will this hurt them? Those questions deserve straight answers.
Scott Rewak is Board Certified, Family Law — Texas Board of Legal Specialization. He handles custody matters in divorces and in cases between parents who were never married, across Dallas, Collin, Denton and Tarrant counties. This page explains the words Texas uses and how the pieces fit together.
The words Texas uses
Texas family law uses its own terms:
- Conservatorship: what most people call custody. It covers the rights and duties of a parent, such as making decisions about school, medical care and where the child lives.
- Possession and access: what most people call visitation. It's the schedule for when the child is with each parent.
- Managing conservator: a parent with decision-making rights. There can be one (sole) or two (joint).
- Possessory conservator: a parent who isn't a managing conservator but usually has a right to time with the child.
Joint and sole managing conservatorship
The court appoints either one parent as sole managing conservator or both parents as joint managing conservators, unless that would significantly impair the child's physical health or emotional development (Tex. Fam. Code §153.131).
Texas law says: "It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption." In plain words, the starting point is shared conservatorship. A parent can try to show that a different arrangement serves the child better, and a history of family violence removes that starting point.
Joint managing conservatorship does not automatically mean a 50/50 schedule. In many joint orders, one parent has the right to decide where the child primarily lives, often within a set geographic area, and the other parent has time under a possession schedule. Who makes which decisions, and whether jointly or alone, is spelled out in the order.
Best interest of the child
Every custody decision in Texas is measured against one question: what is in the best interest of the child? Courts look at the whole picture, which can include each parent's relationship with the child, stability, the child's needs, each parent's ability to put the child first, and any history of family violence or neglect. What carries weight depends on the facts of your family.
Parents sometimes ask whether a child gets to choose. A child's wishes can be heard, especially for older children, but in Texas the child does not make the decision. The judge does.
The standard possession order
Texas has a default schedule called the standard possession order. It is "designed to apply to a child three years of age or older" (Tex. Fam. Code Ch. 153, Subch. F). Parents can agree to something different, and courts can order something different when it fits the child better.
When the parents live within 100 miles of each other, the parent who does not have primary residence generally has:
- Weekends beginning at 6 p.m. on the first, third and fifth Friday of each month and ending at 6 p.m. the following Sunday.
- Thursday evenings during the school year, from 6 p.m. to 8 p.m.
- 30 days in the summer. With written notice by April 1, that parent picks the dates. Without notice, the 30 days are July 1 through 31.
- Holidays that alternate between the parents under the order.
Texas also lets a parent elect an expanded schedule that runs with the school day, for example from school dismissal to when school resumes. That election has to be made before or at the time the possession order is rendered. When parents live more than 100 miles apart, a different schedule applies, such as the option of one weekend a month.
Parenting plans
A parenting plan is the written set of terms for how parents will raise their child after they separate. It typically covers conservatorship, which parent decides what, the possession schedule, holidays, how the parents communicate, and how they will handle exchanges and disagreements.
The more thought that goes into it at the start, the fewer surprises later. School calendars, travel, extracurricular activities, a parent's work schedule and the child's age all matter. A plan that works for a toddler may not work for a teenager.
Unmarried parents
If the parents were never married, the same custody rules apply once the court has a case in front of it. A father who was not married to the mother generally needs paternity to be legally established before he has court-ordered rights to time with the child.
Agreements, mediation and court
Many custody issues are settled by agreement, often in mediation. Courts in this area commonly send contested custody cases to mediation before trial. When parents can't agree, the court decides, sometimes after a home study by an evaluator.
Scott's aim is to help you reach an arrangement that serves your children and lets you move forward from the strongest position possible. If your situation changes after an order is signed, see modifications. If the other parent isn't following the order, see enforcement.
Questions people ask
Does joint custody mean 50/50 time in Texas?
Not necessarily. Joint managing conservatorship is about shared rights and duties. The time each parent has is set by the possession schedule, which may or may not be equal depending on the agreement or the court's order.
Can my child decide which parent to live with?
A child's wishes can be considered, particularly for older children, but the judge makes the decision based on the child's best interest.
What if my child is under three?
The standard possession order is designed for children three and older. For younger children, the schedule is usually tailored to the child's age and needs.
Can the other parent move away with our child?
Many Texas orders limit where the child's primary residence can be, often to a county or set of counties. What applies to you depends on the wording of your order.
Does family violence affect custody?
Yes. A finding of a history of family violence between the parents removes the Texas presumption in favor of joint managing conservatorship. If you are in danger, see protective orders.
