Child Custody in a Texas Divorce
What Courts Do and Don’t Consider When Granting Custody
The determination of where a minor child will reside, and when a non-custodial parent may spend time with the child, are often the most challenging issues to be resolved in a divorce proceeding. As a parent, you want what’s best for your child, but you also want to play a meaningful role in their growth and development.
You can, of course, work out your own arrangements with respect to custody and visitation, but those agreements must be approved by the court. If you cannot come to an amicable resolution, the court will make those determinations based on a number of factors.
The Unique Terminology in Texas
Texas courts no longer use the terms custody and visitation. Instead, Texas refers to custody as conservatorship and visitation as access. A conservatorship generally carries the right to make legal decisions on behalf of the child, including matters related to education, schooling, and religious affiliation/training. One parent may be designated the sole managing conservator, or both parents may share a joint conservatorship.
The Best Interests of the Child
In conservatorship rulings, Texas courts are bound by law to give priority to the best interests of the child. It is presumed that a joint managing conservatorship is in the child’s best interests. A joint managing conservatorship, however, means only that the parents share rights and duties—it does not necessarily mean that they share them equally. Generally, one parent has the right to determine the residence of the child, and the other parent has the right to receive child support. Furthermore, a joint managing conservatorship does not mean that both parents are entitled to equal time with the child.
If one parent seeks to be named sole managing conservator, they must overcome the presumption favoring a joint managing conservatorship with evidence that sole conservatorship would be in the child’s best interests. When making that determination, there are certain factors a court may consider and others it may not:
- Factors that may be considered—The court can use any of the following to make a custody/conservatorship ruling:
- The emotional and physical needs of the child
- The prior involvement and relationship of each parent with the child
- The health of each parent
- The financial security of each parent
- The child’s age and preferences
- Any documented history of abuse or neglect—This involves neglect or abuse of the child, the spouse, or anyone under the age of 18. The wrongful act must have occurred within two years of the filing of the divorce or conservatorship action. Texas courts are precluded from appointing a person as either a sole or joint managing conservator if there’s credible evidence of a pattern or history of child neglect or physical or sexual assault.
- Factors that cannot be considered—The court may not make a conservatorship decision based on the gender of either the child or the parent. Furthermore, marital status may not factor into the decision.
At the law office of Bailey & Galyen, we offer a free initial consultation to every client. For an appointment with one of our experienced divorce and family law attorneys, contact us by email or call our offices at 844-402-2992. We will take your call 24 hours a day, seven days a week.
