Texas Custody Laws for Fathers: Your Essential Guide

Table of contents:

• What are a father’s rights in Texas?
• Key child custody laws in Texas for fathers
• How Texas courts make custody and visitation decisions
• What to do if you’re a father who wants primary or equal custody
• Texas fathers’ rights for same-sex parents
• How can a father get full custody in Texas?
• Three essential steps to take when seeking an advantageous custody outcome for fathers
• Father’s rights in Texas FAQs

We field questions about parental rights for fathers every day at our Fort Worth law firm. Some dads want to know how can a father get full custody, while others need help figuring out how to assert their parental rights in court. If you’re a loving father seeking a favorable custody outcome during a divorce case or a custody modification, you do have rights as a father in Texas.

What are a father’s rights in Texas?

As a father, do you have father parental rights in Texas? Yes. Both parents have parental rights and duties, which have been set forth in the Texas Family Code Sec. 151.001. These rights and duties are not exclusively reserved for a child’s mother (or vice versa). When parents can’t agree on who will be responsible for decisions pertaining to specific parent’s rights in Texas, the court will decide for them.

Key parental rights in Texas include the right to:

• Have physical possession of a child.
• Designate the residence of a child.
• Make decisions about a child’s education.
• Make decisions about a child’s health care.
• Direct the child’s moral and religious training and more.

Fathers must have standing to file a SAPCR

If you are the father of a child who wants to assert your father rights in Texas, and the child’s other parent is refusing or limiting access to the child, you may have a right to file a lawsuit (known as a SAPCR or suit affecting the parent child relationship). However, in order to do so, you must show you have standing to file as the child’s parent. The Texas Family Code Sec. 101.024 defines a parent as follows:

“‘Parent’ means the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive mother or father. Except as provided by Subsection (b), the term does not include a parent as to whom the parent-child relationship has been terminated.”

A family lawyer is your best resource for legal insight on father’s rights and paternity

A child custody lawyer can review the entire list of your rights as a father in Texas, along with the duties parents are obligated to fulfill under Texas law. They can also explain what steps you need to take to establish paternity if your name isn’t on the child’s birth certificate or you don’t meet any of the other conditions described in the definition of parent above.

Key child custody laws in Texas for fathers

Texas custody laws for fathers can be found in the Texas Family Code Chapter 153. This chapter explains how custody, visitation and access to a child are handled for parents who seek custody through the Texas courts. Some of the key child custody laws in Texas pertain to:

Primary conservator, primary residence designation and parental rights

As explained in Texas Family Code Chapter 153, when parents enter into a joint managing conservatorship (or shared custody) under an expanded standard possession order (ESPO) or standard possession order (SPO), one parent is named the primary conservator. That parent has the exclusive right to designate the primary residence of the child and the other has a possession schedule.

The child then stays with one parent during their specified days and the other parent on their specified days. Each parent is responsible for certain parental legal rights and duties, which are detailed in Texas Family Code Chapter 151. Parental rights and duties are hashed out during child custody negotiations or ordered by a judge in a contested matter.

Expanded Standard Possession Order (ESPO)

The expanded standard possession order is presumed to be in the child’s best interest in Texas. If you and your child’s other parent have separated or divorced, have agreed to share child custody and live within 50 miles of each other, the state presumes that an expanded standard possession order (ESPO) is in the best interest of the child.

This schedule is closer to 50/50 parenting time, compared to Texas’ standard possession order (SPO), which was previously the default possession schedule. This change went into effect on Sept. 1, 2021, with the passing of S.B. No. 1936 in the Texas state legislature.

With an expanded standard possession order (parents live less than 50 miles apart), the non-custodial parent generally has possession of their child during the school year on:

• The first, third and fifth weekends from the end of school Fridays to the start of school Mondays.
• Thursdays from end of school Thursday until start of school Friday morning.
• Extended weekends with children overnight for an extra day when there is a federal holiday or teacher in-service day on a Friday or Monday.
• Spring break and Thanksgiving every other year (other holiday possession days also alternate).

You can download a copy of a Texas ESPO visitation schedule here.

Standard Possession Order (SPO), 50/50 custody and other options

While Texas custody laws don’t cover every parenting plan option, parents can switch to a Standard Possession Order (SPO), a 50/50 or another schedule if they prefer and agree to it. A judge must also sign off on the preferrred custody agreement.

If parents don’t agree, the judge will make a decision on custody, visitation and access based on what is in the best interest of the child—the primary concern in Texas family courts. (We’ll get into how to fight for your preferred father custody right outcome later.)

How Texas courts make custody and visitation decisions

The best interests of the child are paramount in the Texas family courts. When determining which legal custody and visitation arrangement would be best for a child, some of the things a judge will consider include:

• How involved each parent has been in child rearing.
• The child’s needs (physical, emotional, medical, educational, etc.).
• The preference of a child age 12 and older (ultimately, the judge decides and has final say).
• The home environment each parent can provide.
• Any potential risks to the child’s physical and emotional safety while in each parent’s care.
• What the parents’ work schedules look like, shifts they work and when they have days off.
• What financial support each parent can provide and more.

The courts may also elect to bring in experts and other witnesses to weigh in on child custody matters. These individuals may include social workers, family therapists, substance abuse experts and amicus or ad litem attorneys, among others.

What to do if you’re a father who wants primary or equal custody

Today’s courts are more inclined to award primary custody and other rights for fathers in Texas than in the past. While mothers still manage to win primary custody more often than fathers, those tides are shifting. Today, legal outcomes are more promising for those pursuing dads rights in Texas, especially as more dads play an active role in their children’s lives.

If you want and believe you deserve primary or 50/50 custody in Texas, you need to stand up for your Texas fathers rights and prove to the court that the father custody right outcome you want is in the best interest of your child.

In most child custody cases, the judge will award the role of primary custodian to the parent who has been leading the charge in regard to parenting duties up to the present and name the other as the non custodial parent. That’s because the child is used to it and courts want to ensure stability for the children at issue.

For example, say you have a type-A person who takes charge and goes and gets everything done. Conversely, the other parent acts as a listener and sounding board type. Who do you think makes the decisions for those two people? When it comes to forecasting who courts choose as the custodial parent, it’s most often based on which parent has been steering the ship and making decisions up to that point.

So, if you want to win primary custody or get equal custody and parental rights as a father in Texas, the judge will need to see that you’ve already been acting in that capacity for a considerable amount of time.

Texas fathers’ rights for same-sex parents

If you want to pursue sole, 50/50, primary or joint custody for a child you share from a same-sex relationship, the same rights and laws that apply to traditional male-female parents generally apply to you. The court will consider each father’s involvement with the child in the past, as well as the emotional, physical, safety and financial considerations discussed above.

Daddy rights in Texas for gay fathers apply to both dads who are a legal parent of a child, not just the biological father. Our family law attorneys have helped many parents from same-sex marriages and relationships fight for their parental rights, even when the client isn’t the biological parent of their child.

How can a father get full custody in Texas?

My ears always perk up whenever I hear somebody say, “I want to totally restrict the other parent from access.” The first question out of my mouth is almost always, “Okay, what is your smoking gun?”

That may sound blunt but that’s also the first question the court will want answered if you hope to end up being a father getting full custody (or mother getting full custody for that matter). So, how can a father get full custody in Texas?

You need to have valid reasons and evidence to back up your plea.

If you want to keep the other parent away from your child, you better have some really good reasons, as most Texas courts believe that it is always in the child’s best interest to have two involved parents. When I ask that question out of the gate and your answer is something like, she (or he) didn’t put the car seat in that one time or she (or he) just doesn’t feed the child healthy vegetables all the time, you’re headed for a major uphill battle.

Now, say you do have a smoking gun—you can prove instances of family violence, alcohol or drug abuse or other actions of the parent that pose a physical, mental or emotional danger to the child or that the other party is incarcerated—you may be able to get full physical custody.

No smoking gun? Maintain realistic expectations.

If you don’t have a smoking gun, you’ll need to adjust your expectations. Again, the court is seeking a resolution that will be in the best interest of the child. Ideally, that means access to two loving parents who can successfully co-parent together.

Speaking of expectations, if you have a crazy work schedule that won’t allow you to be available for your child when they need you most (that includes daily care), it’s very unlikely a judge will award you full custody, especially if you don’t have that smoking gun.

And if not having to pay child support is the reason you want to get full custody or have parents share equal custody, that reason won’t wash with me or the court. For one thing, that reason is not in the best interest of the child. Plus, the reality is even if you succeed at getting a parenting plan with equal parenting time, Texas child support laws require most parents to pay some amount of child support, especially higher wage earners.

Three essential steps to take when seeking an advantageous custody outcome for fathers

So, you haven’t been Super Dad in the past or you’ve struggled to communicate and co-parent amicably with the other parent, huh? That doesn’t mean you can’t make a sincere effort to change, especially if you really want to win full, primary or 50/50 custody of your children.

Here are three tips I share with clients when discussing strategy for a custody case or to modify an existing custody order.

Tip No. 1: Follow the “Do Right Rule.”

Your behavior toward the other parent and ability to amicably co-parent speaks volumes to the judge. While it may be challenging to be nice to someone you despise, now is the time to bite your tongue and be cordial. That means be respectful, don’t send nasty texts or emails (those will show up as evidence in court), don’t gaslight the other parent, give the other parent a little wiggle room when needed and so on.

The “Do Right Rule” also means cleaning up your act if you need to. If you have an alcohol or drug problem, I’m going to strongly advise you to get into a treatment program. If you struggle to hold your temper or suffer from mental health issues, you should proactively address those issues with a mental health professional as well.

Tip No. 2: Be the parent your kids deserve.

Along with cleaning up your act, you need to be 100% present and available for your child when they need you. Do all of those things the judge expects of a parent who wants to care for and make decisions for their child.

That requires you to show up on time, change diapers, shuttle kids to and from school, attend doctor’s visits and extracurricular activities, attend sporting events and music recitals, help with homework, make sure your kids are properly fed, clothed and cared for in a home environment suitable to their needs and listen to and console them when needed. If your ex accuses you of turning into Super Dad, great—keep up the good work!

Tip No. 3: Give them the right, take away the power.

During custody negotiations, you and the other parent will need to decide who will be responsible for certain parental rights and duties, like education, medical care and religious upbringing decisions to name a few. If your ex is adamant about being the parent who makes decisions about a certain right, you can take steps to restrict the power of that right.

For example, you could give the other parent the right to make educational decisions as long as the child attends school in a certain district, or give them the right to make medical decisions as long as the child sees a pediatrician you choose. There are a lot of flexible ways to deal with parental rights, and your child custody attorney or divorce lawyer can explain the options available to you in your specific case.

By the way, if you’re someone who is wondering how to get 50 50 custody as a father, it will be important to include tiebreakers in your custody orders regarding who gets to make the final decision pertaining to specific parental rights and duties. This can help you avoid the legal hassle of going back to court every time you and the other parent disagree about a medical treatment or which school your child should attend next semester.

Let us help you navigate father’s rights in Texas

Whether you’re a father seeking sole custody or you have questions about minimum visitation rights fathers can expect in Texas, the Sisemore Law Firm’s experienced team of family lawyers is here to help. To schedule a confidential case review with a family law attorney at our firm, please call our Fort Worth law office at (817) 336-4444 or connect with us online.

Father’s rights in Texas FAQs

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