Texas Family Laws on Child Custody & Visitation

by Marcy Brinkley
For some divorcing couples, agreeing on a parenting plan is difficult.

For some divorcing couples, agreeing on a parenting plan is difficult.

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When parents divorce in Texas, the final divorce decree must include a parenting plan for children who are under the age of 18, disabled, or still in high school. The parenting plan must indicate who is responsible for making decisions for the children regarding such issues as schooling and medical care, as well as address parenting time and child support. The Texas Family Code states that parents must provide a safe and stable environment for the children and encourages frequent contact with the children as long as the parents demonstrate the ability to act in the children's best interests.

Parenting Plans

If the divorcing parents get along well enough, they can reach an agreed-upon parenting plan either by themselves or with a mediator to present to the court. If the parents cannot agree, the judge will make determinations for them after hearing evidence from both parties and their witnesses. At the final hearing, the judge must find the parenting plan to be in the child's best interest. Best-interest factors the court might consider include the current and future needs of the child, the desires of the child, current and future emotional and physical risks to the child, parenting abilities, and the stability of the home, among others.

Conservatorship

Conservatorship in Texas refers to the legal relationship between the parent and child. Whenever possible, the court appoints both parents as joint managing conservators, which means they both have decision-making rights concerning schooling, medical care, and other issues. In most joint managing conservatorships, however, the children live primarily with one parent rather than having equal time with each parent. Alternatively, the court might decide that joint managing conservatorship is not appropriate due to a history of domestic violence or because one parent has interfered with the relationship between the children and the other parent. In those situations, the judge will appoint one parent as managing conservator to make important decisions concerning the children -- and appoint the other parent as the possessory conservator. When making decisions about conservatorship, the judge may not discriminate on the basis of gender or marital status, according to the Texas Family Code.

Parenting Time

The Texas Family Code states that children are to have "frequent and continuing contact" with both parents whenever possible. Since both parents and the children no longer live in the same household, the parenting plan must set out a schedule for parenting time, also called visitation, or possession and access. To avoid unnecessary conflicts between the parents, the Texas Family Code offers a detailed standard, possession and access schedule, as well as an extended schedule. Both schedules list provisions for weekend and mid-week visits, holidays, summer vacations, spring breaks, travel, and related issues. If the parents prefer, they may set up a different schedule to accommodate their work schedules, religious holidays, and family traditions. If the court finds that the schedule is based on the best interest of the children, it is likely to approve the agreement. If the parents cannot agree, the judge will order them to follow one of the standard possession orders unless they present evidence that they require a different schedule. The right to spend time with the children is not dependent on whether or not a parent ordered to pay child support fails to meet that obligation.

Special Situations

The standard possession orders in the Texas Family Code are intended for children over the age of 3 who live less than 100 miles from a parent. If the parents live more than 100 miles apart, the parent who does not live with the children may follow the standard orders set out in the Family Code, or might choose to have longer periods of possession during school breaks. For children under age 3 at the time of the divorce, the court considers the child's age, needs, emotions, and attachment to both parents when setting a possession and access order. The order should include provisions to adjust the schedule periodically until the child reaches the age of 3, at which time, the standard possession order should go into effect. If a parent on active duty with the military is unable to visit with the children during deployment, that parent has the right to ask the court to calculate the visitation periods missed and grant extra visitation until the missed time is made up.

Modification

Once a divorce is finalized, either parent can request modifications to the provisions concerning the children in the future. Texas Family Code allows modifications to conservatorship and parenting time when the parents agree or, if there is no agreement, when one party can show that there is a significant change in circumstances -- and the modification is in the best interests of the children. Common reasons for modifications include one parenting relocating to another state, a child over the age of 12 requesting to live with the non-primary parent, or the loss of the primary parent's ability to care for the child due to injury or illness. The parents might decide to include a clause in the parenting plan that requires them to go to mediation before filing a lawsuit if an issue concerning the parenting plan occurs.