The state of Texas actually refers to custody as conservatorship. When parents share custody of a child, they act as joint managing conservators. Under a joint managing conservatorship, each parent is responsible for making specific decisions for the child and visitation is split between the two parents’ homes. Which parent makes what decisions and how much time and what days the child spends in each home is hashed out during custody negotiations.
Sole custody in Texas is referred to as a sole managing conservatorship. Under this arrangement, the child typically resides with one parent who makes most if not all decisions about the child’s upbringing. Since the state of Texas believes that most children benefit from having a relationship with both parents, it isn’t easy to get sole custody in Texas.
If you’re preparing for a child custody battle in Texas—or seeking to modify existing custody and visitation orders—you may wonder what the judge will consider when reviewing your case. Like most states, the Texas family court’s first priority is to figure out what is in the best interest of the child.
To determine what directives will best meet the child’s needs—including sole or joint managing conservatorship (sole or joint custody), visitation schedules, child support, etc.—the judge will take several factors into consideration, with some factors carrying more weight than others. These may include:
No. 1: The preference of the child. If a child is age 12 or older in Texas, he or she is allowed to meet with the judge to discuss which parent the child prefers to live with. However, the child does NOT have the right to choose where he or she lives. The child’s preference is just one of many things the judge takes into consideration when determining conservatorship (custody) and visitation.
No. 2: The wishes of the parents. Texas family courts will take the parents’ wishes into consideration, especially if both parents agree to abide by those wishes in advance. If the parents can’t agree on custody and visitation, they will need to provide clear and convincing evidence to support their side of the case—whether that be for joint, primary or sole conservatorship.
Parents will also need to make a case to support other wishes. These wishes may involve visitation and/or the right to make decisions about the child’s medical, education and other needs.
No. 3: The mental and physical health of all parties involved. Does a parent’s mental or physical health prevent him or her from providing a safe, secure and healthy environment for the child? Does the child have physical or emotional needs that one parent is better equipped to handle? Are there any other parties who live in or visit the household who may pose a danger to the child (due to mental health, substance abuse or other problems)? These are all factors the judge will consider.
No. 4: How the child adjusts to his/her environment at home or in school. Is the child having a hard time adapting to life in one of the parents’ homes or struggling to do well in a new school? The judge will take these issues into consideration when determining custody and visitation arrangements or during a custody modification hearing.
No. 5: History of violence by either of the parents. The Texas family courts take family violence and other acts of violence very seriously. If any evidence of violence by either parent exists, the judge may limit or terminate that parent’s access to the child.
No. 6: The relationship between the child and each parent. Barring a threat of physical and/or emotional abuse, the Texas family courts typically believe it is best for a child to have a relationship with both parents. How that relationship looks after the parents part ways, and the access and responsibilities each parent is granted, largely depends on how each parent interacted with the child in the past. In addition, just because a child is much closer to one parent than the other doesn’t mean the judge won’t push for joint conservatorship.
No. 7: The home environment each parent can provide for the child. Is the parent’s home clean and safe? Is there enough healthy food for the child to eat? Are any parties who pose a threat to the child allowed in the home? Is the neighborhood safe and kid-friendly? The Texas family courts like to take a close look at the home environment each parent can provide.
No. 8: The recommendation of an expert witness. Expert witnesses are regularly called upon to weigh in on Texas child custody cases. In some contentious custody disputes, the court may even appoint an amicus attorney (on behalf of the court) and/or an attorney ad litem (to represent the child) to help ensure the rights and best interests of the child are taken into account.
Amicus attorneys conduct home visits and interview children, parents and other parties relevant to the case, in order to collect information and provide recommendations to the court. Attorneys ad litem may perform similar investigations, however their loyalty is to the child, not the court. (Your family law attorney can further explain the specific roles and benefits of each.)
Parenting facilitators and coordinators may also be brought in during the process. While both facilitators and coordinators may interview relevant parties, assess the child’s living situation and provide co-parenting guidance, parenting facilitators may testify in court, while parenting coordinators keep their findings confidential. (Ask your attorney how a parenting facilitator or coordinator could play a role in your case.)
During some divorce and child custody disputes, an expert witness may be called to weigh in on other matters, such as the mental fitness of a parent. For example, a parent may be ordered to go through a psychological evaluation, with a mental health professional reporting those findings to the court. The judge will take such reports into consideration when determining what arrangements are in the best interest of the child.