Last Updated on August 25, 2021 by Varghese Summersett Family Law Group
Child Custody in Texas
Child custody, also known as conservatorship, is the legal ability to make choices about a child’s life. These decisions could encompass where the child lives, where the child goes to school, and many other details about a child’s life.
Types of Child Custody in Texas
There are a few types of conservatorship in Texas.
A managing conservator is one that has the exclusive right to determine where a child lives.
A possessory conservator is one that has to pay child support and has a pre-determined visitation schedule. This person is the noncustodial parent, meaning the child does not live with this parent.
Joint Managing Conservator
In a joint managing conservatorship, conservators share the duties, rights, and obligations related to child care.
Sole Managing Conservator
In a sole managing conservatorship, one parent or conservator gets the right to make all of the decisions regarding the child’s upbringing. This is rare in Texas because most courts assume that a joint managing conservatorship, rather than a sole managing conservatorship, is in the child’s best interest. Factors that may lead to the granting of a sole managing conservatorship are family or domestic violence, criminal history, abuse of the child, or lack of presence in the child’s life.
There are many different types of Texas child custody scenarios, so the court looks to what is best for the child in determining how custody should be established. The court tries to assure that the child will have frequent contact with parents who act in the child’s best interests, to provide a safe, stable, and nonviolent environment for the child, and to urge parents to equally share their rights and obligations should they separate or divorce.
What is the best interest of the child?
The “best interest” of the child is exactly what it sounds like. The court evaluates what living situation would be the most positive experience for the child by looking at a number of factors. The court may consider the following:
- The emotional and physical needs of the child (both presently and in the future)
- Concerns about danger to the child (present dangers and future ones)
- Stability at home
- The goals each parent has for the child
- Evidence or history of domestic violence
- Reports of child abuse, including reports from either parent
- False reporting of child abuse by either parent
- The child’s wishes
- Programs available to help parents promote the best interest of the child
- The parents’ plans for the child
- Acts or omissions by the parent that indicate the existing parent-child relationship is improper
How do courts determine Child Custody in Texas?
Ultimately, the court decides which parent or what living situation would be in the child’s best interest. There is a law in Texas in the Family Code that prevents a person with a history of domestic violence to be a joint or sole conservator of the child. Here are a few questions the court may ask to determine custody.
- Who provided food and care for the child?
- Who helped the child with schoolwork or took the child to and from school?
- Who took the child to the doctor and provided medical care?
- Who scheduled appointments for the child, including doctor’s appointments?
- Who took the child to extracurricular activities?
- Who met with the child’s teachers and attended school events?
Is there such a thing as a standard custody plan?
In Texas, there is a Standard Possession Order, which grants rights to both parents. There are two main types — an order for parents who live within 100 miles of each other, and an order for parents who live more than 100 miles apart.
For parents living within 100 miles of each other, the parent without custody, or the noncustodial parent, has the following visitation rights:
- The first, third, and fifth weekend of each month
- Thursday evenings (every week)
- Alternating holidays (for example, every other Thanksgiving)
- A longer period of time (30 days) over the child’s summer vacation
For parents living over 100 miles apart, the noncustodial parent has the following visitation rights:
- Weekends may be reduced to one weekend per month
- No mid-week visitation
- Alternating holidays (such as every other Thanksgiving, like in the 100 miles or less order)
- 42 days over the child’s summer break
- The child’s spring break
These orders may be modified to be in line with a child’s best interest. One reason why a court may modify an order is if a parent previously had little to no contact with a child, and the child is very young. The court may implement a Modified Possession Order, where the noncustodial parent gets shorter visits until another plan is found to be in the best interest of the child.
Can you modify a Texas child custody order?
Yes. First, you need to obtain a copy of the original order. Your attorney can draft a motion indicating why you would like to be the sole managing conservator of the child. In the motion, the attorney will indicate why the initial order is no longer appropriate. A new hearing will be scheduled with a judge, usually the original presiding judge, to review the new motion. Be sure a copy of the motion gets sent to the other parent. The motion will be argued before the court and evidence will need to be presented to demonstrate to the court why you should have full custody of the child.
So, what does that mean? Essentially, you have to get before the judge again, state your case (the reasons why the old custody plan is no longer appropriate), and the judge has discretion to approve the new plan, keeping the child’s best interests in mind. The main concerns for the court are: the best interest of the child, stability in the child’s life, avoidance of persistent litigation, and the child having both parents in his or her life.
Can a grandparent get custody of the child in Texas?
Sometimes. A grandparent can file suit asking for custody if the grandparent believes it is in the child’s best interest. A grandparent who becomes a custodial parent may seek child support from the parents of the child. Other than custody, a court may grant visitation for a grandparent if:
- The child’s parents are divorced
- The child is a victim of abuse or neglect
- The child’s parent or parents is/are incarcerated, legally incompetent, or dead
- The parent or parents have had their parental rights terminated; or
- The child lives with the grandparent(s) and has done so for a minimum of 6 months.
Can you move with the child once a custody order is in place?
Maybe, but most likely, you will need approval from a judge. Usually, custody agreements come with geographic restrictions. It may be possible to amend the custody agreement, but extenuating circumstances must exist to justify the court restricting one parent’s access to a child because the other parent wants to move, even if it is for work or educational purposes.
Can a child choose which parent to live with?
No. The judge weighs the best interest of the child in determining where the child will live. Often, judges will ask the child where he or she wants to live, but it is not guaranteed that the child will reside with the parent of his or her choosing. Generally, if a child is 12 years of age or older, he or she can tell the judge which parent the child wants to live with, but the judge cannot use that request as the sole determining factor in establishing where the child will live.
What is a Suit Affecting a Parent Child Relationship (SAPCR)?
A SAPCR is a legal proceeding that can determine custody issues, child support, visitation, as well as other rights and obligations of parents. The reason one files a SAPCR is to protect or establish rights as a parent, and to determine what is best for the child.
In this type of suit, you start with a form called the parent-child relationship form. This form provides the court with specific information regarding the parties involved, jurisdiction, information about your child, as well as other information. If you want sole custody of your child, you indicate on the form that you are seeking a sole managing conservator position. After the form is completed, you file it with the Family Clerk’s Office and pay applicable fees. After this document is filed, there will be hearings to ascertain the best situation for the child. Often, evidence is presented to show that the other parent is unable to care for the child or, in cases of abuse, that the other parent has abused the child. It is not uncommon for parties in this type of suit to be court ordered to attend drug or psychological evaluation.
Who can file a SAPCR?
Each SAPCR case is different and dependent on that individual child’s needs. Many parties are able to file a SAPCR. Here are some examples of entities that can file a SAPCR:
- The child’s parent
- An individual with visitation rights to the child
- A foster parent or guardian of the child
- A child’s relative (if the child’s parents are deceased)
- A child’s grandparent (provided they have legal standing to do so)
- A government entity
A parent whose paternal rights have been terminated may not file a SAPCR.
Is a SAPCR different than a paternity case?
Yes. While a paternity case accomplishes similar things in some cases, the main difference is in a paternity case, paternity is being established. In a SAPCR, you ask the judge to make custody, visitation, and support (i.e. child support and/or medical support) decisions. In a paternity case, the judge may make custody, visitations, and support decisions as well, but the court must also establish paternity in those cases. If paternity has already been established or an acknowledgement of paternity has been filed, you can file a SAPCR.
Are there requirements for filing a SAPCR in Texas?
Yes. The child must have resided in Texas for at least six months OR Texas must be the child’s home state and the child must be gone (out-of-state) for less than six months at the time of filing.
If the other parent lives out of state, in addition to the above requirements, the court must have personal jurisdiction over that parent to be able to make the other parent comply with court orders, such as paying child support.
Fort Worth Child Custody Lawyer
Questions about child custody or modifying an existing child custody order? We can help. VS Family Law Group helps individuals and families navigate emotionally-charged family law matters, including child custody issues and disputes. Our goal is to make this difficult time as painless as possible, while achieving optimal results. Whether it’s through negotiation or litigation, we’ll find the best strategy for you. Call us today at (817) 900-3220 or contact us online.