Introduction to Texas Custody Laws
In Texas, the law considers the needs and welfare of the child to be the most important thing in a divorce. Any agreement that puts a child’s needs ahead of what either parent wants is generally approved by the Court. The agreed upon child support, time-sharing schedule and custody or conservatorship are all validated by the ultimate concern that the child’s best interest come first.
Texas is a state that adheres to the notion that children of divorce need both parents to be involved in their lives. Unlike some states where one parent basically gets the children while the other is nothing more than an occasional visitor, the Texas family law system specifically calls for both parents to be involved with the children and the children to be regularly involved with both parents .
Since 1995, Texas has observed a policy that joint custody must be chosen as a first option when parenting issues are being determined whether or not the parties even agree to a specific joint custody arrangement. A joint custody arrangement means that both parents share and agree to every major decision affecting the children. In the absence of an agreement, a primary custodial parent/secondary custodial parent arrangement, where the children live primarily with one parent but the other parent has access and visitation, becomes standard.
The term – "conservatorship" is the legal term used in Texas for what other states refer to as both custody and visitation. The non-custodial parent is referred to as the "possessory conservator" and has the right to visit with the child on a strict schedule to be determined by the child’s needs and the parents’ schedules. This is a far cry from what is referred to in other states as traditional visitation rights.
Father’s Rights under Texas Custody Laws
Fathers’ rights in Texas custody cases extend beyond the divorce itself to post-divorce visitation and custody arrangements as well. While the nuances of the law can be complicated, understanding what to expect and how rights are distributed can help you navigate the system.
A father’s legal rights in Texas begin during the initial divorce proceedings. Both parents hold equal custody rights, which are meant for the "best interest" of the child. To that end, it is up to the parents to fill out a visitation schedule, dividing parenting time in a way that is best for the child and both parents. If visitation cannot be agreed upon, there will be a hearing to determine the schedule, at which point a judge will decide whether or not to award a "standard possession order." A "standard possession order" grants custody to one parent while still granting liberal visitation rights to the other, particularly if that other parent is the child’s biological parent. The standard possession order dictates that the other parent (not granted custodial rights) can visit the child for up to 12 hours on a weekday if the child has not gone to school, or two hours on a weekday if they have gone to school. The order allocates nightly visits to the other non-custodial parent on Thursday nights, and grants visitation every other weekend on Saturday and Sunday. While these visitation rights are fairly cut and dried, it is important that each parent meets the requirements stipulated by the courts. Basically, each parent in Texas becomes entitled to more custody time when they commit time and effort to help with the child’s routine. Parents do not need to live in the same state to share custody, but the court will take into account the condition of the parents and the quality of their parenting in determining the amount of time granted to each parent. The law does not favor mothers over fathers — mothers tend to be awarded custody because they are typically more engaged. If a father is just as — if not more — involved than the mother, they will not automatically lose custody simply because of their gender. Ultimately, visitation and custody varies by case and time available to and the investment in the child’s welfare by both parents, not by gender.
Factors Considered in Custody Arrangements
Factors Influencing Custody Decisions in Texas
When evaluating the factors that influence custody determinations in Texas, it is essential to examine how a child’s best interests are interpreted by the legal system. Currently, the Texas Family Code maintains that the best interests of a child are to be measured by the following factors:
The Child’s Age and Needs While there is no specific age at which a child becomes "of age" to partake in the custody decision process for themselves, this is assessed on a case-by-case basis. Generally, a child’s opinion is considered more favorably if they are mature enough to articulate it. Courts often appoint an attorney ad litem to help children over the age of 12 communicate their preferences effectively. A child’s age is also important because the ability to provide stability is a court consideration when determining the custody arrangement that would be most beneficial for them. Younger children need different things than older kids when it comes to living arrangements, resulting in a preference for custody arrangements that both parents can provide equally. Involvement in Extracurricular Activities Courts also consider a child’s involvement in sports, clubs, music, volunteering, and other extracurricular activities when determining custody arrangements. Maintaining the child’s current activity schedule as much as possible is in the court’s best interest, as this provides a needed sense of normalcy during a period of great change. A sudden disruption to the child’s routine can be damaging to their emotional well-being. Parental Abilities Finally, the ability of each parent to provide for the child is also considered. Can the father or mother provide adequate supervision or make appropriate decisions for their child? How responsible are they? These questions are evaluated in consideration of each parent’s lifestyle and current situation. If one parent has had problems with substance abuse, for example, this will affect their ability to receive child custody. The nature of the relationship the parent has with the child is also analyzed.
The Effect of Joint Parenting Plans on Custody
Shared parenting plans are arrangements where both parents have a role to play in the raising of their children — even when they do not live together. For children that are unable to live with both parents, courts prefer to create a legal "parenting plan" to ensure the child is being cared for in the best possible manner at all times. In many cases, parenting plans can also include provisions for a child’s religious or educational upbringing. When creating a parenting plan, the interests of the child are always prioritized, so courts only approve arrangements that are in the child’s best interest.
This means that there are often certain presumptions that courts make when assessing a parenting plan. For example, courts generally presume that parents should split the custody of their children 50/50. This is because children do not always need access to both parents at all times, and allowing them access is often within their best interest. When both parents are available for the child when they are needed, the child tends to be happier.
Shared parenting plans can have many benefits for both parents. For example, equal parenting time can give useful benefits to noncustodial parents. This is because noncustodial parents often have less flexibility at work than custodial parents, and often miss out on a lot of their children’s activities. By ensuring everyone gets a fair amount of time with the children, there is no unfair burden placed on one parent over another. The result is that there is much less lost time from work. Equal parenting time arrangements even go so far as to create consistent schedules for both parents — this helps to ensure that the child remains in a place they are familiar with, and reduces the amount of emotional turmoil with sudden changes from one place to another.
By sharing parenting time as equally as possible, parents can also reduce the amount of conflict that comes from shared custody arrangements. This helps to promote healthier relationships for both parents, while also making them less likely to engage in behavior that could result in parental alienation.
Finally, shared parenting plans allow for better cooperation between parents. Too often, parents are unwilling to cooperate with each other. This can result in one parent being unwilling to listen to the other, or refusing to change their plans even if it was a mistake. When parents are forced to set aside their differences in order to care for their children, they are more likely to cooperate in other ways in the future.
Texas Custody Process: Steps for Texas Fathers
Once you’ve established a solid foundation of understanding regarding Texas custody laws, you can begin to navigate the legal system as it pertains to your particular situation. This process can seem intimidating, especially for those who have never been involved with the Texas family court system before. However, the basic steps are fairly simple. Here’s a complete guide to all of the important legal steps that must be taken when pursuing custody of your children in the state of Texas: Filing legal documents in the proper courts and responding in a timely manner to court filings received from your spouse is critical to winning your case. If you don’t file paperwork when you’re supposed to or skip past steps in navigating the court system, you could put yourself at grave risk at losing the opportunity to take custody of your children. When you’re filing paperwork pertaining to your custody case , you’ll need to have several important details ready to provide to the courts. The required information includes: In addition to this basic information, there may be several forms that you will need to fill out individually for each child involved in your custody case. For example, if you have two children, you will need to fill out the Child Information Sheet two times, once for each of your children. The next step is to respond to any motions that are filed by your spouse (or another parent) in regards to your custody case. A motion is basically a written request that’s addressed towards the family law court that makes a specific request. A response to a motion is essentially saying, "I disagree with what my spouse is requesting, and here’s why…". Motions can deal with anything from visitation to child support to provisions for appearance in the courtroom.
Common Difficulties Faced by Fathers in Custody Disputes
The UCCJEA has made it challenging for some fathers to exercise their full parental rights. There is significant urgency to file a custody action in Texas the moment a father is informed that a final custody or divorce decree has been entered in another state, since Texas requires that prior orders are given great weight. Conditions for modification of prior orders can be found here: https://statutes.capitol.texas.gov/Docs/FM/htm/FM.157.htm#157.002.
The Texas UCCJEA has also proven a challenge for some fathers who are indigent and lack funds to file suit or hire an attorney. A father who has legal rights can still be denied physical access to a child when his position is not properly asserted in the courts, or where he has lost a formal divorce proceeding but has no visitation rights. It is critical that a father not fail to assert his rights and remedies when he is served with an order that prohibits him from seeing his children. Like the UCCJEA rules, judges have significant discretion in a custody dispute and the outcome can depend on the skill level of the judge presiding over the case. These family court judges are primarily elected officials and they do not hear divorce courts on a daily basis. A good trial attorney will have experience in family law courts and he or she will know what the courts expect or require in a given case. One example is showing up for court pretrial hearings and doing so promptly. Dads need to keep in mind the importance of submitting evidence to the court to support their claims even in a "quick hearing" or an alleged emergency proceeding. Judges have, for example, dismissed pleadings from a parent who failed to demonstrate the nature or extent of the abuse using forms of evidence such as certified copies of protective orders or affidavits from independent witnesses. A client working with an experienced attorney can be assured that his or her position will not be ignored. While the system sometimes is not in favor for fathers advocating for his rights, he may be successful if up against a judge willing to listen.
How Parents Can Modify Existing Custody Agreements in Texas
Fathers can seek to modify existing custody agreements under certain circumstances. In Texas, a parent can seek modification of possession or access to a child if there is a material and substantial change in circumstances. A modification suit may also be brought if the current order is more than one year old and the parent seeking the modification has the permission of the other parent. The reasons for seeking modification must be consistent with the best interests of the child.
Examples of circumstances that allow parents to seek modification include:
- The custodial parent moves out of state and can no longer provide the primary home for the kids
- The custodial parent is found to be abusing drugs, alcohol, etc.
- A parent dies
- A parent violates the existing order
- A parent becomes unable to fulfil existing obligations under the order (such as moving far away or becoming seriously ill or disabled)
- Allowing an existing order to continue will not longer be healthy or safe for the child. Abuse of a parent or child, for example, may render it unsafe for the child to remain in a home.
A court will not consider changes to a custody arrangement until at least a year has passed since the previous order was given. After a year is passed, a parent can prove that he or she does not have proper possession or access to the child, that it is not in the best interests of the child for the existing order to continue, or that a material and substantial change has occurred which makes modification appropriate.
Texas Conclusion: Protecting Fathers’ Rights to Custody
In summation, achieving a fair and just custody arrangement in Texas can be a complex process, but it is absolutely within reach for determined fathers. Texas courts place great importance on the welfare of the child, and as a father, you have a fundamental role to play in that welfare. Working with legal counsel to build a strong, evidence-based case that demonstrates your commitment to your child’s best interest will be instrumental in reinforcing your custodial rights under Texas law .
Beyond understanding your rights, actively working for them is essential. Whether you are currently facing a legal dispute as a father in Texas or simply want to be prepared for potential future conflicts, staying informed and remaining ready is your best strategy. The law may be complex, but with the right approach, the road to shared or joint custody in Texas is navigable, with a favorable outcome at the highest tier of your plans.