Know the Laws: Texas
UPDATED July 20, 2016
Custody is complicated and it is important to try to find a lawyer who has experience with custody and domestic violence laws to help you with your case. Go to our TX Finding a Lawyer page for a listing of legal services organizations and Texas.
In Texas, custody is called “conservatorship.” Conservatorship is used to describe the legal rights and responsibilities of a parent. A judge may give conservatorship to one or both parents. A judge can grant:
Generally, conservatorship (custody) includes the right to:
* Tex. Fam. Code §153.005(a)
** Tex. Fam. Code § 153.073(a)
Sole managing conservatorship (SMC) means you are the only parent with the legal right to make certain decisions concerning your child. If you are granted SMC, you have the general rights given to a conservator and you are the only parent who has rights such as:
Joint managing conservatorship (JMC) is when the rights and duties of a parent are shared by both parties. However, exclusive right to make certain decisions (like where the child lives) may be awarded to one party.*
JMC can be established either by an agreement from the parents or a court order. If the parents come to an agreement about sharing managing conservatorship, the agreement must be approved by a judge.*1
When making a decision about JMC, the judge will consider what is in the best interest of the child, which includes:
If both parents are made conservators, the judge will specify the responsibilities each parent has separately and jointly.*3
Even if the judge grants joint managing conservatorship, s/he may still make one parent the primary joint managing conservator, also known as the “custodial parent” and the other parent would be the possessory joint managing conservator. The custodial parent has the right to determine the primary (main) residence of the child. All other decisions are made by both parents.*4
Note: When a judge makes both parents joint managing conservators it does not mean that each parent will necessarily get equal or nearly equal possession of and access to the child.*5
* Tex. Fam. Code § 101.016
*1 Tex. Fam. Code § 153.133
*2 Tex. Fam. Code § 153.134(a)
*3 Tex. Fam. Code § 153.071
*4 The Texas Young Lawyer’s Association, What to Expect in Texas Family Law Court, (2010)
*5 Tex. Fam. Code §153.135
The possessory conservator has the same rights and responsibilities as any other parent except s/he does not decide the primary (main) home of the child. The judge can limit these rights at his/her discretion.* One parent is usually made possessory conservator when the other parent is made the sole managing conservator.**
However, a judge will not make a parent possessory conservator if it is not in the best interest of the child and might harm the physical and emotional well-being of the child.**
To read about the rights and responsibilities of a possessory conservator see What is conservatorship (custody)? What types are there? and What is possession of and access to a child (visitation)?
* Tex. Fam. Code § 153.192
** Tex. Fam. Code §153.191
In Texas, visitation is called possession of and access to a child. A parent can get possession and access unless the judge determines it is not in the best interests of the child and will endanger the physical or emotional well-being of the child.*1
During the time that a parent has possession of his/her child, s/he has:
A standard possession order contains a parent’s rights of possession of and access to his/her child.* It is basically a visitation schedule. In a standard possession order, the parents can either agree on a schedule or the judge will order a schedule s/he thinks is appropriate.*1 The schedule contains exact dates and times that a child will stay with each parent. The standard possession order is designed for a child over 3 years old. Therefore, if the child is under 3 years of age, there may be a different order in effect until the child turns three.*2 See What factors will a judge consider for a child who is less than 3 years old? for more information.
The judge can modify (change) the standard possession order to accommodate the parties. If the judge decides to modify (change) the standard possession order, s/he will consider several factors including the age, developmental status, circumstances, needs, the best interest of the child and the circumstances of the managing conservator and of the parent named as a possessory conservator.*3
* Tex. Fam. Code § 101.029
*1 Tex. Fam. Code § 153.311
*2 Tex. Fam. Code § 153.254
*3 Tex. Fam. Code § 153.256
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time -- and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to TX Finding a Lawyer to seek out legal advice.
During a custody suit, the parties may be able to go to arbitration to help them come to an agreement about conservatorship and possession. Arbitration means a neutral third party, called an arbitrator, will be present at the custody proceeding instead of a judge. The parties can decide whether the arbitration is binding (legally enforceable) or not. In binding arbitration, once an agreement is finalized it is made official unless the judge believes it is not in the best interest of the child.*
* Tex. Fam. Code § 153.0071(a), (b)
Mediation is a process where parents can come to an agreement about conservatorship and possession of their child without going in front of a judge. A third party, called a mediator, meets with the parents to help them get to a mutual agreement. Parents may agree to mediation or a court may order mediation.
Once an agreement is reached, it will be binding on all parties if the agreement:
However, a court will not accept an agreement made through mediation if one of the parties is a victim of family violence and this impaired his/her ability to make decisions and the agreement is not in the child’s best interest.
If you are a victim of family violence, you can ask the judge not to refer the case to mediation. Usually, the judge will grant the request, unless the other party disagrees and asks for a hearing to determine whether or not mediation is appropriate. After the hearing, if the judge refers the case to mediation anyway, measures may be taken to protect the party who did not want mediation. For example, the judge may order separate rooms and no face-to-face contact during mediation.*
* Tex. Fam. Code § 153.0071(c)-(f)
A parenting plan contains the rights and responsibilities of the legal parent/s of a child, including a schedule for possession and access to the child and child support information.* Parents can make a parenting plan and submit it to the court. If a judge finds that it is in the best interest of the child, s/he will order the use of that parenting plan. Otherwise, the judge can order a parenting plan s/he believes is appropriate.** A parenting plan is required once a final order about conservatorship and possession of and access to the child is determined.***
* Tex. Fam. Code § 153.601(4)
** Tex. Fam. Code § 153.007
*** Tex. Fam. Code §153.603
A parenting coordinator is a third party that helps the parties come to an agreement about parenting issues.* A judge may assign someone to a case if the parents or persons acting in the capacity of parents cannot come to an agreement about parenting issues. You do not need to wait for the judge to assign a parenting coordinator; you can request one if you think it would help.
Generally, a judge will order a parenting coordinator only if the parties have repeatedly brought legal action against one another and have trouble communicating with one another.
If you do not want a parenting coordinator to get involved because there has been a history of family violence against you or your child, you can make a written objection to the judge. A hearing will be held if the other parent still wants to have a parenting coordinator involved. After the hearing, if the judge decides to appoint a parenting coordinator, the judge must take precautions to protect you from emotional and/or physical harm. For example, you might be placed in a separate room from the abuser when you meet with a parenting coordinator.**
There is a fee to meet with the parenting coordinator. The payment is shared by both parties. If the parties cannot pay the fee, the judge may be able to find a volunteer to act as a parenting coordinator.***
* Tex. Fam. Code § 153.601(3)
** Tex. Fam. Code § 153.605
*** Tex. Fam. Code § 153.609
A parent education and family stabilization course is designed to help parents and children dealing with divorce. In a proceeding to determine conservatorship or possession of or access to a child, the judge may order the parents to attend the course if s/he determines that it is in the best interest of the child.
The course has a fee. If the parties cannot afford the fee, there may be able to find courses that are free or offered on a sliding fee scale. A parent can complete the course by personal instruction, videotape instruction, or through electronic communication. Courses may also be available in Spanish. For information on course locations, contact the county clerk. See TX Courthouse Locations for contact information for the county clerk near you.
If a judge orders the parties to attend a course and they do not, they can be held in contempt of court.
Note: If you have been a victim of family violence, you can ask the judge to place you in a separate class from the other parent.*
* Tex. Fam. Code § 105.009
It is the public policy of Texas that a child have frequent and continuing contact with his/her parents and have the parents share the rights and responsibilities of raising their child as long as it is in the best interest of the child.*1 The law favors granting parents sole or joint managing conservatorship but evidence of family abuse is taken into serious consideration when determining the best interest of a child.*2 (See Can a parent who committed violence get “custody” (conservatorship) or "visitation" (access)?) Alternatively, a competent adult, a licensed child-placing agency, or the Department of Family and Protective Services can be appointed sole or joint managing conservator of a child.*3
A child’s relative might be granted managing or possessory conservatorship. See I am a child’s relative. Can I get managing or possessory conservatorship? for more information.
Note: In determining custody, there should be no discrimination based on sex or marital status.*4
*1 Tex. Fam. Code § 153.001
*2 Tex. Fam. Code § 153.131
*3 Tex. Fam. Code § 153.005, Tex. Fam. Code § 153.371- 153.372
*4 Tex. Fam. Code. § 153.003
The judge can deny a parent access to a child if:
However, even if any of the above are true, the judge can still grant access if:
Note: Although the judge will assume that it is not in the best interest of a child for a parent to have unsupervised visitation if there is a history/pattern of past/present child neglect or physical/sexual abuse by that parent (directed against the other parent, a spouse, or a child), the abusive parent can still present evidence to change the judge's mind.***
* Tex. Fam. Code § 153.004(d),(f)
** Tex. Fam. Code § 153.004(d-1)
*** Tex. Fam. Code § 153.004(e)
If a person is filing for sole or joint managing conservatorship, the court will consider whether the person has been abusive toward his/her spouse, the parent of the child, or any person under 18 years old within the 2 years before filing for conservatorship or during the proceeding. In addition, the judge is supposed to consider whether at any time before filing of the petition (or while the court case is pending):
A judge may deny joint managing conservatorship if s/he finds that there is a history or pattern of child neglect; physical or sexual abuse of a parent, spouse or child; or if the judge finds that the abusive parent committed a sexual assault (as defined by Texas Penal Code) that led to the child being conceived.*1 A finding that the child was conceived as a result of sexual assault is also grounds for the judge to terminate the parent-child relationship with the abusive parent if termination is in the best interest of the child. If the parents lived together or were married for the two years following the birth of a child who was conceived from rape, the judge may terminate the parent-child relationship with the abusive parent only if the abusive parent was convicted of a sexual assault (as defined by Texas Penal Code) and termination is in the best interest of the child.*2 The judge will also assume that it is not in the child’s best interest for the abusive parent to be a sole managing conservator or to be the conservator who has the exclusive right to determine the primary residence of a child; however, that parent has the right to present evidence to try to change the judge’s mind.*1
Likewise, the court will consider any incident of family violence in deciding whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator.*3
Note: If a conservator gets a final protective order issued against him/her after the date of the order establishing conservatorship, s/he has to notify the other parent (conservator) within 30 days. Failure to do so is a Class C misdemeanor crime.*4
* Tex. Fam. Code §§ 153.004(a), 153.005
*1 Tex. Fam. Code §§ 153.004(b)
*2 Tex. Fam. Code § 161.007
*3 Tex. Fam. Code §§ 153.004(c)
*4 Tex. Fam. Code § 153.076(b-1)(3),(c-1)(3),(d)
Yes. The law says that each conservator must notify the other conservator if:
The notice must be made as soon as possible, but not later than:
Failure to properly notify the other conservator within the timeframe required is a Class C misdemeanor crime.***
* Tex. Fam. Code § 153.076(b),(b-1)(1),(2),
** Tex. Fam. Code § 153.076(c),(c-1)(1),(2)
*** Tex. Fam. Code § 153.076(d)
A child’s great-grandparent, grandparent, uncle or aunt can file for managing conservatorship if there is “satisfactory” proof that:
A grandparent can request possession of or access to his/her grandchild. Much of the judge's decision will be based on various factors relating to the grandparent's child (the parent of the grandchild in question). The judge should give the grandparent visitation if:
A grandparent cannot request possession of or access to a grandchild if the grandchild has been or is in the process of being adopted (by a person other than the child's stepparent) and both of the child's biological parents:
* Tex. Fam. Code § 153.433
** Tex. Fam. Code § 153.434
A sibling who is at least 18 years old can file a petition for access to a minor child. However, if the siblings are separated due to an action by the Department of Family and Protective Services, the sibling who is seeking access does not have to be 18 years old; s/he can file at any age. The judge will grant the sibling’s request if it is in the best interest of the child.*
* Tex. Fam. Code §§ 102.0045; 153.551
If a nonparent, licensed child-placing agency or the Department of Family and Protective Services* is appointed conservator, they are given a number of rights and responsibilities, including:
* See Tex. Fam. Code § 102.003(7),(6)
** Tex. Fam. Code § 153.371
It depends on the particulars of your situation. To find out what the process will be like for you, please contact a lawyer in your area. If you cannot afford one, you may be able to get help from a legal resource on our TX Finding a Lawyer page.
If you are going to be filing the papers yourself without an attorney, Texaslawhelp.org has an instruction manual explaining how to file in a contested case (where the parents disagree about custody) and an uncontested case (where the parents agree). If you are the non-custodial parents, another resource is the Texas Access and Visitation Hotline, which allows you talk to a lawyer for free and talk to someone in person at their drop-in clinics. They provide legal information and assistance related to child custody and visitation issues, as well as paternity and child support information. They do not represent people in court. The statewide, toll free number, 1-866-292-4636, is answered in English and Spanish, Monday - Friday from 1 to 7 p.m. See www.txaccess.org for more information.
Generally, you would file for custody in the “home state” of the child. The "home state" is the state where your child has lived with a parent or a person acting as a parent for at least the past six months. If your child is less than six months old, then your child's home state is the state where s/he has lived since birth. Leaving the state for a short period of time does not change your child's home state.*
If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, you or the other parent can start a custody action in the state you just left (where your child most recently lived for at least six months) if one of the child’s parents continues to live in that state.**
*Tex. Fam. Code § 152.102
** Tex. Fam. Code § 152.201
Yes, there are several exceptions to the “home state” rule.
Significant Connections - you may file for custody in a state where your child and at least one parent have “significant connections” and there is substantial evidence in that state regarding your child’s care, protection, training and personal relationships. This exception applies only if your child does not have a home state or if the court in your child’s home state chooses not to determine custody.*
Inconvenient Forum - the court may decline to hear your case in favor of a more appropriate court in another state. Before declining, the court will consider several factors, such as:
When deciding who will have custody, a judge will try to make an arrangement that s/he thinks is in the "best interest of the child."*
Some factors the judge may consider are:
A judge has to consider the following factors when deciding a possession order for a child who is less than 3 years old:
There are several ways to establish paternity (legal fatherhood) in Texas. Paternity is presumed (assumed) when a man is:
If the parents are not married, they can sign an Acknowledgment of Paternity (AOP).** There is no filing fee to file the AOP.*** You can get an AOP form at a hospital, the local registrar, the Child Support Office or at the Vital Statistics Unit. For more information, see the website of the Texas Attorney General.
Another way to establish paternity is when a parent files a paternity proceeding in court and the judge orders a genetic test to prove legal fatherhood.****
* Tex. Fam. Code § 160.204(a)
** Tex. Fam. Code § 160.301
*** Tex. Fam. Code § 160.306
**** Tex. Fam. Code § 160.502
The judge may require one or both parents to provide child support until:
To change a conservatorship or possession and access order that is already in place, you need to file a motion with the court. Generally, you can file to change or modify a conservatorship or possession and access order if it would be in the best interest of the child and:
Possibly, although there are many factors that a judge will consider when deciding whether or not to transfer a case to another state. To read more, go to our general Custody page and read our Changing a final custody order section. Please visit our TX Finding a Lawyer page for legal help if you have already moved out of state (with court permission) and are now seeking to transfer your case to that new state.
If you move to another county within Texas, you may be able to transfer the case to that new county. A judge can grant your request if the child has lived in that county for at least 6 months and if the judge believes that it is more convenient for the parties and witnesses.*
* Tex. Fam. Code § 155.202
It depends. Generally, in most states, a parent can take his/her kids out of the state for a brief trip as long as there is no order prohibiting it and so long as it does not interfere with the other parent’s visitation rights. However, if you are uncertain whether a planned trip may violate your custody order, please consult with a lawyer before leaving.
If you want to permanently move out of state (or move within the state to a distant location that would interfere with the other parent's visitation schedule), then you may have to return to court to try to modify the order to get permission to move and to change the terms of the court order. As with any modification of a custody order, in order to get permission to move, you must prove to the judge that moving would be in the best interest of your child. As with all custody issues, it is probably best to talk to a lawyer about this matter. Please visit our TX Finding a Lawyer page.
Generally, yes. Both the custodial and noncustodial parents will have access to your child's records, unless a court order says otherwise. These records include anything relating to your child, such as school records, medical and dental records. If you do not want the other parent to have access to these records, you must convince the judge that there is a good reason for her/him to limit this access.* Also, if you are living in a confidential address due to fear of the batterer, you may want to consider using a P.O. box address at the child's doctor or school, if possible. Another option is to participate in the Texas Attorney General’s Address Confidentiality Program. This way, if the batterer does get access to the child's records, s/he cannot use the records to find out where you are living.
* Tex. Fam. Code § 153.073
WomensLaw.org thanks Tracy Grinstead-Everly, JD, Policy Manager at the Texas Council on Family Violence for her help in revising this information.