Understanding the Different Types of Child Custody

Divorce“No man’s life, liberty, or property are safe while the legislature is in session.”
~ Mark Twain or Gideon J. Tucker.

The Texas legislature meets every two years. Each legislature there are a plethora of bills introduced involving Family Law. One of the bills that came up this time was House Bill 453 which dealt with equal child custody. It died in committee. This past weekend several supporters of HB 453 held a rally in Austin outside the capitol building.

I believe child custody is very misunderstood. People frequently come into my office saying they want sole child custody, joint child custody or full child custody or any number of other things. However in Texas we don’t even have child custody. We have Conservatorship. Equally important, Custody and Conservatorship are not the same thing.

Conservatorship deals with rights and duties. It is defined in Chapter 152 of the Texas Family Code. For instance, who gets to see the report cards, who should know about and attend the choir concert, who should decide whether or not the child has their tonsils taken out. If you believe both parents should play a part in making these decisions, congratulations you believe in Joint Managing Conservatorship which is the standard in Texas.

Next the Family Code deals with Possession and Access. This is found in Chapter 153 of the Family Code. This is the section of the Family Code I believe people are talking about when they use the terms custody and visitation. Next time you have a copy of the family code search it thoroughly. You won’t find the words custody or visitation anywhere.

I will be the first to tell you the Family Code isn’t perfect. At times I don’t even think it is good. But, I think the legislature did its dead level best to make the best situation for children of a truly horrible situation. At a rally last weekend Shelly Toner, a child activist from San Antonio, speaking to the crowd said “When somebody wins custody, somebody loses, but children also lose,” “Moms can’t be dads, and dads can’t be moms.” I agree with her. But too often parents focus on winning and losing as parents. The court is charged with acting in the best interest of the children. Over the years I have handled literally thousands of cases involving children and I can tell you almost universally children want to live with both parents. But as a practical matter this is almost impossible to do with divorced parents except in the rarest of circumstances. A child will primarily reside with one parent and visit the other.

Here is where I think the legislature got it right. The standard possession and access order is just inconvenient enough on both parents that the only way everyone will be happy is if they cooperate and the standard possession schedule has that provision included: THE PARTIES SHALL HAVE POSSESSION OF THE CHILD AT ALL TIMES MUTUALLY AGREED TO IN ADVANCE. Failing mutual agreement, the following shall apply…. Thus the parents are free to do whatever they want. Additionally, and I think this is the part where litigants, lawyers, and even judges get lazy – the standard possession schedule is just there if you don’t take the time to craft something else. The judge is tasked with acting in the child’s (not the parent’s) best interests. The attorneys together with their client need to put together a schedule and present it to the judge that ensures the child has as much time as possible with both parents. According to David O’Connor a child and adolescent psychiatrist from Austin there’s a high connection of kids in the criminal justice arena, at risk for being in the juvenile justice system, at risk of being in the mental health arena and the lack of both parents involved. Equal parenting not only decreases that risk for the child, it decreases conflict among the parents, it decreases the litigation between divorced or unmarried parents.

Contact Us to Discuss Child Custody

To set up a free initial consultation, contact us online or call us at 844-402-2992. For your convenience, we answer our phones 24 hours a day, 7 days a week. We will meet with you evenings or weekends upon request.


Family LawTypically the rights and duties of a parent are outlined in Chapter 151 of the Family Code. Those rights include
(a) A parent of a child has the following rights and duties:
(1) the right to have physical possession, to direct the moral and religious training, and to designate the residence of the child;
(2) the duty of care, control, protection, and reasonable discipline of the child;
(3) the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;
(4) the duty, except when a guardian of the child’s estate has been appointed, to manage the estate of the child, including the right as an agent of the child to act in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government;
(5) except as provided by Section 264.0111, the right to the services and earnings of the child;
(6) the right to consent to the child’s marriage, enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological, and surgical treatment;
(7) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
(8) the right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;
(9) the right to inherit from and through the child;
(10) the right to make decisions concerning the child’s education; and
(11) any other right or duty existing between a parent and child by virtue of law.

In a Suit Affecting the Parent Child Relationship the court will allocate the rights and duties between the parents. Typically many of the rights a parent has at all times, such as the right to receive information from teachers or doctors. Some of those rights a parent only has when they have possession of the child such the right to direct religious or moral training of the child.

Lastly there are some rights that are exclusive to one parent. These are generally going to be the right to make educational decisions, serious medical decisions or to designate where the child lives. Often parents want all of the decisions to be equal. As a practical matter this won’t work.

What happens if your child gets ill and the doctor recommends the child have a tonsillectomy or tubes in their ears and one parent agrees and the other doesn’t? Who makes these decisions? We can require the “primary parent” to have meaningful consultation with the non-primary parent before making the educational or medical decision; thereby protecting the rights of the non-primary parent by allowing that parent to stay involved in the decision process.

It’s not a perfect system, but until all married couples with children never divorce, the rights and duties have to be allocated. If you find yourself in need of an attorney to help you with your divorce, or Suit Affecting the Parent Child Relationship, give us a call.


Child Support

As many of you know, I worked for the Attorney General’s Office in the Child Support Division for many years. One of the things that never ceases to surprise me is that many litigants and even attorneys approach Child Support as though it is a ‘cut and dry’ matter of simply multiplying the net income by the appropriate fraction and arriving at the correct child support amount.

I believe this is a job half done. Texas Family Code section 154.123 makes clear that there are several other factors to consider. For instance, how close do the parties live to one another? If they don’t live close to one another, who moved away? Does the “visiting parent” actually exercise all of their available possession and access? Do they exercise greater than the ‘standard’ possession and access? Does the child have any extraordinary expenses? Does the Obligor have an automobile, travel, cell phone, etc. that are provided by the employer? Just as the division of a marital estate is not 50/50 rather it is to be ‘just and right given the circumstances of the parties’ child support is not net resources (don’t forget to also consider income or resources provided by trusts, mineral interests, employers) multiplied by a particular fraction. Instead that is the point where we then ask the questions outlined in Section 154.123 to see whether or not a variance, either up or down is appropriate to reach a result that is ‘just and right’ given the circumstances of the parties.

Contact Us

To set up a free initial consultation to discuss your child support concerns, contact us online or call us at 844-402-2992. For your convenience, we answer our phones 24 hours a day, 7 days a week. We will meet with you evenings or weekends upon request.


Child Custody

Going to court for child custody can be a stressful event for a parent or guardian. The judge’s decisions about child custody can have serious long-term impacts on a parent or guardian’s relationship with a child. Therefore, this article will help you prepare for a custody hearing by informing you on what to expect if you go to court, how the court makes its decision, and what not to do while in a custody battle. In Texas, when a parent wants to establish custody the parent has the right to file a lawsuit called a Suit Affecting the Parent Child Relationship (also known as a SAPCR) or a Suit to Establish the Parent Child Relationship. The lawsuit will ask the court to decide issues of parentage, conservatorship, visitation and child support.

What can I expect from a Texas SAPCR hearing?

At a SAPCR hearing, a judge will consider what custodial arrangement to order. In Texas we do not have custody but instead have conservatorships. Texas has two kinds of conservatorship: (1) sole managing conservatorship, and (2) joint managing conservatorship. The presumption is that joint managing conservatorship is in the best interest of the child. However, the court will consider many factors in deciding which type of conservatorship is appropriate. The “best interest of the child” is always the court’s primary concern. The court is not allowed to discriminate against a parent because of sex or marital status. Additionally, all factors surrounding the child’s life may be relevant to determine what is in the child’s best interest.

When a parent is appointed as a joint managing conservator (referred to as JMC), both parents will often share parental rights duties and powers. However, even in a JMC situation, the court may designate one parent who will be responsible for establishing the location of the child’s primary residence and designate the geographic location within which the child’s residence must be located. This parent is called the primary joint managing conservator, also referred to as the “custodial parent.” The other parent is called the “possessory conservator,” because that parent has the right to possession of the child at certain times, and is commonly referred to as the “non-custodial parent.” Aside from the decision regarding the location of the child’s primary residence, most other major parenting decisions are shared between the primary and possessory joint managing conservators. The presumption under the law is that joint managing conservatorship is in the best interest of the child.

The parent or guardian that receives the residence of the child will receive one additional superior right, which is the right to receive child support. Therefore, the parent that does not have residence of the child will be required to pay child support.

How does the judge make his/her decision?

First and foremost, the presiding judge will make a decision on Joint Managing Conservators vs. Sole Managing Conservators and who will determine residence of the child based on the best interests of the child—rather than those of the parents. So what exactly does this mean? While most people are familiar with the phrase, “best interests of the child,” many are unsure what contributes to that decision therefore the following factors are what goes into the decision:

  • The parent who has been the primary caretaker of the child
  • Parents to provide for the child’s needs and development
  • Emotional health of the parents
  • Informal or formal child care agreements
  • Indications of alcohol or substance abuse
  • Instances or accusations of domestic violence
  • The child’s preferences (is not dispositive)
  • Financial stability of the parents
  • Stability of the parents’ home environments

While some of these elements will bear more weight than others in the eyes of the court, most rulings are based on a careful consideration of several different factors listed above. With the more recent events weighing more heavily than those from long ago.

In most SAPCR cases, the Court will request a Social Study. The Social Study is a court ordered investigation of the circumstances and home life of the parents and the child. It is usually conducted by a social worker, who will visit the home of each parent and interview the child, the parents, and other persons involved in the child’s life. When the investigation is finished, the social worker will write a recommendation to the court as to what would be in the best interest of the child, including where the child should primarily live and/or what type of visitation schedule would be best. Normally the parties are ordered to each pay for half the cost of the social study.

If the child custody hearing is being held in order to modify a prior SAPCR, then the person seeking the modification must show that circumstances have significantly changed since the original SAPCR. For example, a non-custodial parent might request a modification because a custodial parent plans to move away.

What NOT To Do During SAPCR!

As you can tell from the list of factors above the court predominantly considers the actions of the parents in making its determination. With the most recent events weighing more than those from long ago. Therefore, the actions that parents take during litigation will have the most bearing on the Judge’s decision. With that in mind the following is a list of what NOT to do during litigation:

  • Alienate the kids
  • Talk to the kids about the litigation
  • Physical harm or confront the opposing party(s) or child
  • Move in with your boyfriend or girlfriend
  • Criticize the other parent
  • Stop paying child support – even if there is no order obligating you to pay
  • Take the kid out of school or daycare without approval from the other party
  • Go on an unexpected vacation

During litigation your movements and actions will be viewed under a microscope. Therefore, be cautious about what you do. Especially in today’s society that allows your ex to view everything you do on Facebook, Twitter, and cell phones.



Occasionally, I receive calls from a parent who has been contacted by Child Protective Services (CPS) due to something that the other parent has done. CPS is alleging that the other parent has either abused or neglected the child (or children) and they have begun an investigation. The abuse or neglect is frequently due to drug or alcohol abuse, or family violence. The parent that is not the source of the investigation is frequently referred to as the “non-offending parent.”

The non-offending parent should not make the mistake of assuming everything will go smoothly for them due to the fact they have done nothing wrong. This can be a costly assumption. If the parent does not get involved in the case, his or her rights regarding the children can be at risk!

First of all, the non-offending parent should keep in contact with CPS and the caseworker assigned to the case. Let the caseworker know that you want the children to live with you. A non-offending parent has the right to have the children placed in their care unless it is determined that it is not in the best interest of the children. If you are not living with the other parent that is the cause of the investigation, CPS may be willing to allow the children to live with you during the case. However, if you are married to or live with the other parent, CPS may take the position that you failed to protect the children from the abuse or neglect, and therefore are no longer considered to be a non-offending parent.

Even if CPS allows the children to live with you, there may still be requirements placed on you by CPS or the court, if a court case has been filed, such as a service plan or certain other restrictions. This can be frustrating, particularly if you are not the reason for the CPS involvement. You may also be required to deny the other parent access to the children, which can be difficult emotionally. While you need to cooperate with CPS, and complete the requirements asked of you by CPS, remember that anything that you tell the CPS caseworker can be used against you or the other parent. It is crucial that you seek the advice of an attorney with experience dealing with CPS. A non-offending parent has legal rights during the case. Having an experienced attorney by your side to lead you through the process during this emotional time can make all the difference in your children’s future.


Child Custody

Child custody is a broad topic that covers a wide array of family law. For example, when a parent to a child says they are going to “put child support” on the other parent, they are actually going to get involved in a case that must involve custody and visitation, as well. This situation, and the sometimes negative results, is something I see far too often when it comes to people that have received court orders through the mechanisms set up by the Attorney General.

When a couple shares a child or children, and then get separated, inevitably orders should get entered related to that child or children and the couple. The basics are as follows: one parent gets “custody,” the other parent gets a” visitation schedule,” and that parent with the visitation schedule gets ordered to pay child support to the parent with custody. But, that leaves a lot of the equation out. For one, when someone applies for child support through the Attorney General, there is an automatic assumption that that parent is already acting as the custodial parent. The form actually starts with one parent being considered the custodial parent and one parent being considered the non-custodial parent.

Also, rarely spoken about is important parental rights and duties that can get trampled on when someone tries to navigate the system without an attorney, or when someone just signs something, thinking they are just agreeing to pay child support. All too often, an order through the Attorney General does not include a full listing  of parental rights for the non-custodial parent. Also, the Attorney General’s order may not include any sort of residency restriction on the custodial parent. This is just to list the top two issues I see. So, a client comes in to me, wanting to know why he or she cannot fight for custody, and I have to tell them that the reality is they just signed an order, agreeing to the opposite. Or, they come to me, saying they need to file for custody, and I end up learning that there has been an  order in existence for two years through the Attorney General that allows very little access to this potential client.

Now, we aren’t talking about a new custody case, but a modification case, which can be more difficult to successfully litigate. Speaking of having little access, this is another area of problem that I often see with clients that have done orders through the Attorney General’s office. These pre-populated orders do not actually have the sufficient language or boxes to check to correctly reflect exactly the different types of visitation that are available to a parent. 

So, a parent ends up getting visitation on the first, third and fifth weekend from 6:00 p.m. on Friday until 6:00 p.m. on Sunday, when they could have potentially had from the time school dismisses on Thursday until the following Monday when school resumes. This effectively doubles the amount of time a non-custodial parent can spend with their child. In the end, the role the Attorney General plays as it pertains to family law is essential. They make sure that parents are receiving much needed child support, and that parents who do not pay are held accountable. The warning here is more toward the parent that wants to be a part of his or her child’s life, the parent that would willingly pay child support or the parent that truly wants to fight for custody: either know your rights and make sure to assert them or hire an attorney who can assert them for you.


Access to and Possession of Children – New Issues in Shared Parenting Time

Family law practitioners, as well as clients, are exploring new ways to achieve more equitable parenting time between parties and their children.

The first codification of laws relating to access to and possession of children was enacted in 1963, prior to the inception of the Texas Family Code. The predecessor to the Standard Possession Order of today contained just two sentences, “The court shall by order permit visitation privileges at reasonable times and places by the parent not having custody of the child or children if the parent should be considered fit for visitation, and if the court considers such visitation privileges to be in the best interest of the child or children. The interest of the child or children shall be the paramount consideration in the determination of the extent of the visitation privileges, if any.” House Bill 22, 58th Reg. Session, 1963

Imagine trying to enforce visitation under that provision!

No parent wants to be relegated to “second” place.

Most separated parents are familiar with the Standard Possession Order which is contained in the Texas Family Code, although they may not know it as such. Because divorced and unmarried parents are so pervasive in our culture, it is commonplace for single parents to have access to their children on either an every-other weekend basis, or the first, third and fifth weekend of the month-type schedule. However, these schedules are based upon a system where one parent is known as the “primary joint managing conservator” and the other parent is somehow assigned the role of “other parent” or “non-custodial parent”. The “primary” parent nomenclature is a misnomer at the start. The term is derived from the most important right and duty of parenthood, the right to determine the child’s primary residence, and therefore, by default, to choose the school the child will attend in most cases. But it is easy to see how the term can affect the dynamics of the family, however unintentionally. No parent wants to be relegated to “second” place. Hopefully, future legislative changes will update these rigid titles, thereby creating more equity between separated parents.

A phrase which Is consistently glossed over or buried within the many pages of a divorce decree of order in suit affecting the parent-child relationship, is that the possession provisions are enforced “in the absence of mutual agreement” between the parties. Fit parents, acting in the best interests of their children, can and do agree upon possession of their children between them, with no need for court intervention. Unfortunately, when an agreement is breached, parents have no choice but to look for the law to intervene and resolve their disputes.

The trend in family law courts is to foster agreements between parents to create access and possession schedules to fit their unique needs. Tarrant County’s Access Facilitation Program and the use of private parenting facilitators are enabling parents to sit down with their individual schedules and reach more flexible periods of share parenting time with their children.

Shared parenting schedules are diverse as families themselves. While a week-on/week-off schedule may work well for older children and teenagers, a 2-2-3 schedule is more desirable for families with younger children, who need to see each parent more frequently. To customize a parenting schedule to fit your family’s needs is the optimal solution.

If you are in the midst of a divorce or a contested suit affecting your children, try thinking outside of the box, together with your lawyer. Your family is unique and different from any other. Your children’s needs will change based upon their age and development, and it behooves you to take this into account when creating a schedule for you and your former spouse or partner to spend time with them. Plan for vacations, holidays that you may celebrate with your family and your children’s activities, so as to share as much as you possibly can with them. Your children love both of you equally, so try to work in a framework to support that love even though your family is no longer one unit.