Child Custody

Child custody is a common subject that arises when a couple separates or divorces. The process decides who gets legal custody over a child between the parents or other persons eligible to be a guardian.

Child custody in Texas focuses on the best interest of the child under the Family Code Chapter 153.002. The best interest of the child means the general welfare of the child is the primary determinant of the court’s decision in custody cases.

Moreover, the public policy of Texas state as regards child custody is to:

  • Guarantee the continuous relationship between the child and the parents that have the best interest of the child. 
  • Ensure the child grows in a safe, stable, and nonviolent environment.
  • Encourage separated or divorced parents to share custodial rights over their child and carry out responsibilities of raising the child together. 

Since the court grants custodial rights according to this policy and in the child’s best interest, it is unlikely a party that is guilty of domestic violence or being absent in the child’s life will be favored in a custody proceeding. 

Types of Child Custody in Texas

Texas officially refers to custody as conservatorship, and the parent with custody is a conservator. Per Texas Family Code Chapter 153.131, there is a presumption that the court shall appoint a parent as the sole managing conservator, or both parents shall be joint managing conservators. 

However, this is not applicable if the court eventually establishes that this decision will not be in the best interest of the child. If a parent has a history of domestic violence, the presumption is also not applicable. 

A parent appointed as a sole managing conservator under Texas Family Code Chapter 153.132 enjoys exclusive rights that include:

  • Choosing the child’s primary residence.
  • The right to make decisions on the child’s education.
  • Representing the child in legal action and making legal decisions that concern the child.
  • The right to permit medical, dental, and surgical treatments on the child that involves invasive procedures.
  • The right to consent to a psychiatric or psychological treatment
  • Receiving child support payments from the other parent and using the funds for the benefit of the child.

If the parents agree to a joint managing conservatorship per Chapter 153.133 of the Texas Family Code, they have to develop a parenting plan in which they must agree to the duties and rights each of them has. The parenting plan filed with the court must specify the parent responsible for the child’s primary place of residence and the responsibilities of each parent concerning the education, physical care, and support of the child. Essentially, the parenting plan must be in the best interest of the child.

Alternatively, the court can issue an order assigning both parents as joint conservators if they do not file a parenting plan they agreed on. Among other factors, the court embarks on this if this is in the child’s best interest. Other factors considered by the court include:

  • If the joint appointment will benefit the physical, psychological or emotional needs and development of the child.
  • The capability of the parents to prioritize the child’s wellbeing and make mutual decisions that benefit the child.
  • The willingness of each parent to encourage and boost a positive relationship between the other parent and the child.
  • The experience and participation level of both parents in raising the child before the child custody suit. 
  • The geographical proximity of the home of the parents.
  • The child’s preference (if 12 years of age or older) as to which parent they wish to reside with primarily. 

If the court appoints a parent as a sole conservator, the other parent would become a possessory conservator. A possessory conservator has similar rights except deciding the primary residence of the child. However, the court is unlikely to appoint a possessory conservator if it will result in emotional or physical harm to the child’s wellbeing. 

How Does Domestic Violence Affect Child Custody in Texas?

Domestic Violence in Texas is commonly referred to as Family Violence. According to the Texas Health and Human Services, family violence occurs when a family or household member harms another member physically or emotionally. It includes sexual abuse, emotional abuse, sexual abuse, and financial abuse in different forms. Children that experience acts of domestic violence are also victims of domestic violence.

Under Texas Family Code Chapter 153.004, the court shall consider the history of domestic violence or sexual abuse before appointing a person as a conservator. The court shall consider any evidence showing the commission of deliberate physical or sexual abuse by a party in which the victim was a spouse, the other parent, or minors within two years prior to the custody filing. 

If the evidence establishes that the party has a history of physical or sexual domestic abuse or child neglect, the court shall decide that appointing such party as a sole managing conservator is not in the best interest of the child. Such a party can also not have the exclusive right to decide the child’s primary place of residence. 

While outright termination of parental rights is uncommon in Texas, the laws allow a court to deny a parent access under the following circumstances:

  • There is a history of the parent committing family violence within a two-year period from the date of the lawsuit’s filing.
  • The parent is guilty of engaging in any of the following offenses which resulted in the victim becoming pregnant with the parent’s child:
  1. Continuous sexual abuse of a young child or children
  2. Sexual assault
  3. Aggravated sexual assault
  4. Prohibited sexual conduct

However, the court may permit the parent access to a child if it does not threaten or endanger the child’s physical or emotional wellbeing. The court may also allow the visitation of a parent guilty of family violence under the following circumstances:

  • A person appointed by the court continuously supervises the visitation sessions between the parent and the child. 
  • The parent must desist from intaking alcohol or using a controlled substance. 
  • The visitation sessions are conducted in a protective setting for the child.
  • The parent agrees to participate and completes a battering intervention and prevention program or counseling with a professional, as ordered by the court.