How Child Custody is Determined in Texas
During divorce proceedings in the state of Texas, the judge ensures that whatever custody arrangement is decided must reflect the child’s best interests. The best interests of the child are legally protected through an evaluation of both the parents’ individual and joint resources and capabilities when it comes to providing for the child. The custodians are referred to as “conservators” in Texas courts and their legal rights and responsibilities are called a conservatorship. The court usually comes to a decision between a Joint Managing Conservatorship (JMC) and Sole Managing Conservatorship (SMC).
Joint Managing Conservatorship
Under Texas law, it is presumed that both the parents should be allowed to remain in the child’s life and make major decisions together. A joint managing conservatorship (JMC) divides the duties and responsibilities toward the child among both parties, but this is not necessarily an equal division.
If the parents cannot come to an agreement for the terms of their JMC, the court steps in and sets the terms. The physical custody, or possessory conservatorship, may also go to one or both parents even in a joint managing conservatorship. It is important to note that denying access to the child to the other party under the terms that the court has decreed is illegal and punishable by law.
Sole Managing Conservatorship
There are certain circumstances under which one of the parents may completely lose the right to meet or keep the child with themselves. A sole managing conservatorship is awarded to one of the parents when the other parent is deemed unfit to take responsibility for the child. This happens in case the parent has a previous history of child abuse or domestic abuse, alcohol or drug history, instances of violence or neglect or has remained absent from the child’s life for the most part.
An SMC may also be considered if the parents have severe conflicts when it comes to their religious, moral, or educational values and this conflict is likely to negatively impact the child. When one parent receives sole conservatorship, they are fully in charge of making all major decisions impacting the child, such as:
- Where the child will primarily reside
- Medical and dental decisions
- Educational decisions
- Consent to psychological or psychiatric evaluation or treatment
In addition to this, the sole conservator of the child also retains the right to be designated as the person to be contacted in case of any emergencies, and attend the child’s school events.
In Texas courts, the parent who receives sole conservatorship will almost always receive child support from the “non-custodial parent,” until the child turns 18 years of age. The terms of child support payment are decided by the court.
There is a third conservatorship arrangement that may be chosen if there are at least two children and each parent is given full custody of one child. This is known as split custody.
How Are the Best Interests of the Child Protected?
The term “best interests of the child” is often heard in divorce proceedings and custody arrangements but how exactly does the court decide what is best for the child? In making decisions that will serve the child as well as possible, the following points are taken into consideration:
- The child’s personal preferences and desire
- The child’s physical and emotional needs at present
- The child’s physical and emotional needs that may arise in the future
- Anything that may endanger the child’s health and wellbeing
- The parenting capabilities of both parents
- Availability of programs that may be able to assist one or both parents in protecting the best interests of the child
- The future plans that both parents have for the child
- The stability of the home/homes that the child is proposed to live in
- Any indication that one of the parents is failing or might fail to maintain a proper parent-child relationship
- Any excuse that a parent might have for their failure to act in the best interest of the child
Although the child’s preferences are listed among the factors that are to be considered, it may be noted that they are not the final verdict in the eyes of the law. Apart from certain special circumstances, the child does not get to have the final say on which parent they get to live with or spend time with until they turn 18 years old.
Requesting a Change in the Child Conservatorship Order
Once the court has decided upon a child conservatorship order, it can be difficult to have it modified. To request a change, a “Petition to Modify the Parent-Child Relationship” has to be filed in court.
There are certain circumstances under which Texas courts will review and modify the child conservatorship order that was previously decided. Primarily, if there has been a substantial change in the circumstances of the child, one or both of the parents or another party that has been affected by the conservatorship since the date that the order was issued, this can serve as sufficient grounds to modify the arrangement to better accommodate the new circumstances.
Secondly, if the child has expressed a desire to change the physical custody arrangement in court or change the person who gets to decide where the child primarily resides, then this preference may be taken into account. To meet this condition, the child must be at least 12 years of age.
The third condition under which the court may decide to review the child’s conservatorship is if the parent who was awarded the exclusive right to decide upon the child’s residence has been noted to have given up the care and custody of the child to another party for a period of at least six months. In this case, if the care and possession of the child had to be relinquished to someone else due to the conservator’s military service, the court does not make modifications to the conservatorship.
Contact Rios, Parada & Seañez, PLLC Today
At Rios, Parada & Seañez PLLC, we understand that the child custody and visitation order has a monumental impact on the lives of you and your family. Our lawyers handle this responsibility with great care and offer the best legal counsel and representation to ensure that your rights are protected and the court proceedings come to the best possible outcome for all affected parties.