Texas Divorce & Custody

by Beverly Bird

The Texas courts leave very little open to interpretation when it comes to child custody. Before divorcing, the law obligates parents to enter into a written, detailed parenting plan that covers almost any eventuality. The statutes presume that both parents should have an active role in their child’s life. This means that absent extreme circumstances, such as one parent posing an emotional or physical danger to the child, a Texas judge is generally obligated to order some version of joint custody.

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Joint Managing Conservatorship

Texas’s custody terms can be confusing because they duplicate each other to some extent. The state calls joint custody “joint managing conservatorship.” This does not refer to who the child lives with rather it addresses which parent makes important decisions regarding the child’s life. As much as possible, Texas courts want the decision-making process to resemble that which existed prior to the divorce with both parents taking part. Texas calls the custodial parent the “managing conservator,” even if both parents are jointly responsible for child-rearing decisions. The parent with visitation is the “possessory conservator” under Texas law.

Determining Managing Conservator

A Texas judge will utilize a doctrine called “the best interests of the child" when deciding which parent should be a child’s managing conservator. The factors that contribute to a child's best interest vary from state to state. Texas judges consider such issues as the desires of child, the child’s physical and emotional needs, parental ability, and home environment stability. Ultimately the best interests of the child is the weightiest factor in determining managing conservator.

The Child’s Wishes

Texas has a special law that allows some children to state a preference for which parent they'd like to live with post-divorce. After a child reaches the age of 12, he can sign and submit his own affidavit, called a “Preference of Person to Designate Primary Residence.” The affidavit states which parent he wants to reside with. After the court receives the affidavit, the child will meet with either a judge or a guardian ad litem, a third party appointed by the court to look after his best interests. The child’s wishes aren’t controlling; the judge doesn’t necessarily have to rule the way the child wants him to rule. But such an affidavit would influence a judge’s decision.

Standard Possession Order

Texas courts prefer that parents agree to a parenting plan on their own. If you and your spouse can't agree on this, a judge may order you to attend alternative dispute resolution procedures like mediation or arbitration. Whether the judge ultimately orders a parenting plan, or if you and your spouse reach an agreement, the “standard possession order” will detail your plan and should be signed by the court. The order sets a basic visitation schedule for children older than three years old and can be adjusted to accommodate a family’s particular needs and circumstances. For example, the SPO calls for visitation two to three weekends per month, beginning on the first, third and fifth Fridays. If you've agreed to more visitation than that, you can submit an expanded SPO. The SPO generally covers everything from regular visitation to holidays, special occasions and vacation time with each parent.