Custody Rights

Texas allows for two forms of custody when children are involved in a divorce or a suit affecting the parent-child relationship (“SAPCR”).

Note: the term SAPCR is fully explained in the “Divorce/SAPCR” section of this Web site.

In the first scenario, the parties are appointed as Joint Managing Conservators of their children. In the second scenario, one party is appointed as the Sole Managing Conservator, and the other parent is appointed Possessory Conservator. These two custody forms are often called “sole custody” or “joint custody.”

In most Texas cases, persons named as custodians will share joint custody. A common misconception, voiced to us quite often at the beginning of a case, is the idea that children in sole custody situations only have one parent conservator in their lives. In Texas, this is not the case. Although provisions for limited or supervised visitation can be ordered when there may be a danger present for a child, even under a sole custody award, the non-Sole Managing Conservator, the Possessory Conservator, still is nearly always awarded visitation time.

Texas family law is based on a Child’s Best Interest Standard, and the general presumption at the start of any case is that children are best served when they have two parental figures in their lives, even when and if the parents are separated. Custody awards may be rendered as part of Temporary Orders and/or final orders by the court.

Note: Texas judges who award a more stringent form of custody, or even limited visitation at the Temporary Orders stage due to what they consider to be a lack of proper parenting on the part of one conservator, are generally looking to see if that conservator improves their behavior before a final order hearing since Temporary Orders are revisited and may be altered during a final hearing.

Sole Custody

Sole custody is generally awarded when one or both biological parents are absent from a child’s life or when a danger exists for the child. These cases often involve situations where family violence, improper drug or alcohol use, or when physical abuse or neglect of a child has occurred. An adult (who does not have to be a biological parent) may be awarded sole custody, and this adult is named the Sole Managing Conservator. This individual is typically given the exclusive right to make all significant decisions for the child’s benefit in the future, including medical, educational, and psychological decisions.

Note: Several additional legally awarded decision-making powers exist under Texas law, so feel free to inquire concerning these when counseling with your family law attorney.

Joint Custody

Another common misconception is that if joint custody is awarded, it means that two adult conservators will automatically share 50/50 time with their young charges. While this does occur in some cases, especially where the parties agree to do so, generally, one conservator will be appointed as the children’s “Primary Residential Conservator,” who will establish the primary residence of the children. The other Joint Managing Conservator will typically be awarded specified visitation with the children, which varies on a case-by-case basis.

Note: see our “Visitation” Section to learn about the various visitation options commonly awarded in Texas.

Under a joint managing conservatorship arrangement, conservators generally share in decision-making for their children (with the exception that, in most cases, only one conservator is granted the right to determine the primary residence of the children and to receive child and medical support). It should be noted that the title “residential conservator” does not need to be awarded if both parties agree, but in contested cases, the law requires a judge to choose one.