Child custody laws in Texas can be confusing and going through a child custody court case can be an extremely taxing experience. If you have a basic understanding of the laws in Texas regarding child custody then you can help yourself in minimizing the stress. Read on to learn about some of the major points in a child custody case.
The Child’s Home State Makes a Difference on Where a Child Custody Case can be Filed.
The Texas Family Code states that an original child custody case can be established in Texas only if Texas is the home state of the child on the date of the commencement of the proceeding or a court of another state does not have jurisdiction or has declined jurisdiction. A stat
e is a child’s home state if the child has lived in that state for at least six months. If you are going through a divorce and you have children then there will be a child custody case incorporated within your divorce. This does not eliminate the rule regarding the child’s home state. If you are going through a divorce in Texas and Texas is not your child’s home state then you should talk to a qualified family lawyer for additional guidance. For that matter, if you have any type of child custody case or divorce going on then it is wise to seek the advice of a qualified family attorney.
Once a Court Makes an Initial Custody Determination about a Child then that Court has Exclusive Continuing Jurisdiction.
In order to avoid different courts in different states making conflicting determinations regarding child custody, and causing the child’s life to be turned upside down, generally, the first court to make an initial child custody determination has the exclusive right to modify the order made and to make subsequent orders regarding the child. It is very possible that even if you receive a child custody order today, someday, the order may need to be modified before the child turns 18.
Rights of a Parent Regarding a Child in a Texas Child Custody Case
The Texas Family Code addresses the appointment of conservators of children. Conservatorship is a term used to describe the right to make decisions regarding the child and duties, and the right of possession and access to a child. There are two types of conservators in which a parent can be appointed, managing conservators and possessory conservators, and further, managing conservators are of two types, joint managing conservators, and sole managing conservators. The Texas Family Code presumes that it is in the best interest of parents to be appointed joint managing conservators. That is a mouth full, and I will get into more detail about the specifics surrounding the different conservators below, but first, let’s discuss one of the most fought over decision making rights in Texas child custody cases which is the right to designate where the child primarily resides.
The Primary Parent
The parent with the exclusive right to determine where the child primarily resides is sometimes referred to as the primary parent. Being the primary parent is what some parents are referring to when they say that they are seeking sole custody. If you are seeking to be the parent with the exclusive right to designate where the child primarily resides then you may be interested in what a court will consider in deciding who the primary parent should be. The following is a non exhaustive list of factors, that a Texas family court will consider (keep in mind that the main thing the court considers in making child custody determinations is what is in the best interests of the child):
- Who fed your child;
- Who bathed your child;
- Who got your child ready for school;
- Who took your child to school or daycare;
- Who picked up your child from school or daycare;
- Who scheduled, attended and took the child to and from doctors’ appointments;
- Who attended school activities and parent-teacher conferences;
- Who participated in the child’s extracurricular activities; and
- Who helped with the child’s homework?
A common myth regarding child custody cases in Texas
Some people think that if their child is 12 years old then they have the right to choose which parent they want to live with. This is probably the most common myth in Texas child custody cases, and likely wreaks havoc on the child if one parent is trying to convince the child to pick them over the other parent. There is no need to try to convince a child that they want to live with you because ultimately it is not the child’s choice. That being said however, if a child is over the age of 12 then, upon request of a party, a court must interview the child to determine what their opinion is as to who they would like to live with. This in no way binds the judge and the decision is still made according to what is in the best interest of the child.
Types of Conservatorship
Sole Managing Conservators and Possessory Conservators
A sole managing conservator is a conservator who has the exclusive right to make certain decisions regarding the child. If one parent is a sole managing conservator then the other parent is a possessory conservator, meaning that the possessory conservator has the right to possession and access to a child according to a court ordered visitation order, but does not have decision making rights. A sole managing conservator has the exclusive rights and duties, unless limited by a court:
- the right to designate the primary residence of the child;
- the right to consent to medical, dental, and surgical treatment involving invasive procedures;
- the right to consent to psychiatric and psychological treatment;
- the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
- the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
- the right to consent to marriage and to enlistment in the armed forces of the United States;
- the right to make decisions concerning the child’s education;
- the right to the services and earnings of the child; and
- except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as agent of the child in relation to the child’s estate if the child’s action is required by the state, the United States, or a foreign government.
Joint Managing Conservators
A joint managing conservator is one of two people who share in the rights and duties of a parent listed above. There are three main ways that joint managing conservators can exercise their rights and duties. Decisions can be made, and duties discharged, jointly, independently, and exclusively. A good and common example to illustrate the point is through the right to make decisions regarding invasive medical decisions. Sometimes parents will have the independent right to make decisions regarding invasive medical procedures subject to the agreement of the other parent. So if a child needs a surgery for example, the other parent’s consent will need to be obtained before the procedure can be performed. You may be wondering, what if they don’t agree? In many cases there will be a tie breaker such as the child’s then treating physician. As stated above, the presumption in Texas is that parents share in the rights and duties regarding their children, but if a parent is appointed a sole managing conservator then that doesn’t mean that the possessory conservator has no rights. There are rights that exist at all times for both parents and those are as follows:
Rights of Parents at All Times
- the right to receive information from any other conservator of the children concerning the health, education, and welfare of the children;
- the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children;
- the right of access to medical, dental, psychological, and educational records of the children;
- the right to consult with a physician, dentist, or psychologist of the children;
- the right to consult with school officials concerning the children’s welfare and educational status, including school activities;
- the right to attend school activities;
- the right to be designated on the children’s records as a person to be notified in case of an emergency;
- the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the children; and
- the right to manage the estates of the children to the extent the estates have been created by the parent or the parent’s family.
- the duty to inform the other conservator of the children in a timely manner of significant information concerning the health, education, and welfare of the children; and
- the duty to inform the other conservator of the children if the conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter.
What Does a Court Consider in Appointing a Sole Managing Conservator?
As stated above, the presumption is that parents be named joint managing conservators. However, this is not always in the best interests of the child, which is the court’s main concern in making child custody determinations. The following is a list of factors that the court will consider in determining the best interest of the child and whether or not to appoint a parent as a sole managing conservator:
- The child’s desires
- The emotional and physical needs of the child, now and in the future
- Danger to the child, now and in the future
- The parental abilities of both parents
- Stability of the home environment
- The plans each parent has for the child
- Whether there is evidence of domestic violence
- Whether either parent has filed a false report of child abuse
Domestic Violence
If a party can show that there is evidence of domestic violence against the child, a parent, or a member of the household, then the Texas Family Code prohibits the appointment of parents as joint managing conservators and can have serious adverse consequences on the offending party’s right to exercise visitation. Stay tuned for a future article on the implications of domestic violence on Texas child custody cases. You can also find links to previous posts by visiting the Law Office of Chad Zubi Family and Criminal Law Blog Index byclicking here.
Contact a Qualified Texas Child Custody Lawyer
The preceding article is for informational purposes only and should not be relied upon, and is not intended to be, legal advice in your specific case. If you are planning on initiating a child custody case, a divorce involving a child, or other family law matter then it is to your advantage to hire legal counsel who is familiar with the Texas laws in this area and who will advocate strongly for your interests. The Law Office of Chad Zubi stands ready to help you with your case and offers a free and confidential case evaluation. Call 832-777-8924 to schedule an appointment or send an emailto
