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 our general Custody page, we have information about custody that is not specific to any state. The page includes a section about how to try to transfer your custody case to a new state where you are living so that you can modify the custody order from your new state.
General info & definitions related to custody
What is conservatorship (custody)? What types are there?
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:
- get information from the other parent or another conservator of the child about the health, education, and welfare of the child;
- confer with the other parent, if possible, before making a decision concerning the health, education, and welfare of the child;
- have access to medical, dental, psychological, and educational records of the child;
- talk to a physician, dentist, or psychologist about the child;
- attend school activities, including school lunches, performances, and field trips;
- talk to school officials concerning the child’s welfare and educational status, including school activities;
- be listed on the child’s records as a person to be notified in case of an emergency;
- consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
- manage the estate of the child.2
1 Tex. Fam. Code § 153.005(a)
2 Tex. Fam. Code § 153.073(a)
What is sole managing conservatorship (SMC)?
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 the right to do the following:
- decide the primary (main) residence of the child;
- consent to medical, dental, and surgical treatment involving invasive procedures;
- consent to psychiatric and psychological treatment;
- receive child support;
- make decisions concerning the child’s education;
- represent the child in legal action and make legally-significant decisions concerning the child;
- consent to marriage and to enlistment in the armed forces of the United States;
- access earnings of the child;
- act as an agent of the child in relation to the child’s estate; and
- apply for, renew, and hold onto your child’s passport.1
There are several reasons why a judge might grant one parent sole managing conservatorship:
- the other parent has a history of family violence, neglect;
- the other parent has a history of drugs, alcohol or other criminal activity;
- the other parent has been absent from the child’s life;
- there is a history of extreme conflict between the parents over educational, medical and religious values; or
- one parent does not want joint managing conservatorship.2
1 Tex. Fam. Code § 153.132
2 The Texas Young Lawyer’s Association, What to Expect in Texas Family Law Court (2010)
What is joint managing conservatorship (JMC)?
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.1
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.2
When making a decision about JMC, the judge will consider what is in the best interest of the child, which includes:
- whether the physical, psychological, or emotional needs and development of the child will benefit from joint managing conservators;
- the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
- whether each parent can encourage and accept a positive relationship between the child and the other parent;
- whether both parents participated in child upbringing before the filing of the suit;
- the geographical closeness of the parents’ residences;
- if the child is 12 years of age or older, the child’s preference, if any, regarding the person to have the exclusive right to decide where the child will live; and
- any other relevant factor.3
If both parents are made conservators, the judge will specify the responsibilities each parent has separately and jointly.4
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.5
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.6
1 Tex. Fam. Code § 101.016
2 Tex. Fam. Code § 153.133
3 Tex. Fam. Code § 153.134(a)
4 Tex. Fam. Code § 153.071
5 The Texas Young Lawyer’s Association, What to Expect in Texas Family Law Court (2010)
6 Tex. Fam. Code § 153.135
What is a possessory conservator?
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.1 One parent is usually made possessory conservator when the other parent is made the sole managing conservator.2
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.2
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)?
1 Tex. Fam. Code § 153.192
2 Tex. Fam. Code § 153.191
How is paternity (legal fatherhood) established?
There are several ways to establish paternity (legal fatherhood) in Texas. Paternity is presumed (assumed) when a man is:
- married to the mother of the child and the child is born during the marriage or born before the 301st day after the date the marriage ended (Note: 301 days accounts for the length of a typical pregnancy);
- married (but not a valid marriage) to the mother of the child before the birth of the child and the child is born during the invalid marriage or before the 301st day after the marriage ended;
- married to the mother of the child after the birth of the child and voluntarily acknowledged paternity, and:
- the acknowledgment is in a record filed with the bureau of vital statistics;
- he voluntarily named himself the child’s father on the child’s birth certificate; or
- he promised in a record to support the child as his own; or
- lived with the child in the same household for the first two years of the child’s life and he presented himself as the father to other people.1
If the parents are not married, they can sign an acknowledgment of paternity (AOP) if both parents agree to this.2 There is no filing fee to file the AOP.3 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. Note: Signing an AOP generally means that the father has full rights and responsibilities as a parent, equal to the mother’s, unless a court order limits his rights.
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.4
1 Tex. Fam. Code § 160.204(a)
2 Tex. Fam. Code § 160.301
3 Tex. Fam. Code § 160.306
4 Tex. Fam. Code § 160.502
General info & definitions related to visitation
What is “possession and access” (visitation)?
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:
- the duty of care, control, protection, and reasonable discipline of the child;
- the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
- the right to consent for the child to medical and dental care not involving an invasive procedure; and
- the right to direct the moral and religious training of the child.11
A judge will create a visitation schedule, called a standard possession order, using certain guidelines. A standard possession order is used for children 3 years of age or older.12 For a child less than 3 years old, the judge will create a visitation schedule that s/he thinks is appropriate.13 See What factors will a judge consider for a child who is less than 3 years old? for more information.
A possession order can be changed to meet the particular needs of the managing conservator(s), possessory conservator and the child(ren).14
1 Tex. Fam. Code § 153.191
11 Tex. Fam. Code § 153.074
12 Tex. Fam. Code § 153.251
13 Tex. Fam. Code § 153.254
14 Tex. Fam. Code § 153.253
What is a standard possession order?
A standard possession order is basically a visitation schedule that lays out a parent’s rights of possession of and access to his/her child.1 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.2 The schedule contains exact dates and times that a child will stay with each parent.
According to the law, if the possessory conservator lives 100 miles or less from the primary residence of the child, the possessory conservator will usually have the right to possession of the child during the following times unless the judge finds that it would not be in the best interest of the child:
- on weekends throughout the year beginning at 6 p.m. on the first, third, and fifth Friday of each month and ending at 6 p.m. on the following Sunday; and
- on Thursdays of each week during the regular school term beginning at 6 p.m. and ending at 8 p.m.3
There is also a typical standard possession order regarding vacation time. You can read the details about vacation time in section 153.312 of the law, subsection (b) on our Selected Texas Statutes page.
If the possessory conservator resides more than 100 miles from the residence of the child, the standard possession schedule for the possessory conservator would likely be different. You can read about the possible schedules in section 153.313 of the law on our Selected Texas Statutes page
The standard possession order is generally designed for a child over three years old. Therefore, if the child is under three years of age, there may be a different order in effect until the child turns three.4 See What factors will a judge consider for a child who is less than 3 years old? for more information.
The judge can change the standard possession order to accommodate the parties. If the judge decides to do this, 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.5
1 Tex. Fam. Code § 101.029
2 Tex. Fam. Code § 153.311
3 Tex. Fam. Code § 153.312(a)
4 Tex. Fam. Code § 153.254
5 Tex. Fam. Code § 153.256
Should I start a court case to ask for supervised visitation?
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.
General info & definitions related to the court process
What is arbitration?
If the parties agree to arbitration in writing, the judge can refer the case to arbitration to help them come to an agreement about conservatorship and possession. Unlike with mediation, the judge cannot refer the case to arbitration on his/her own - the parties have to agree to this. Arbitration means a neutral third party, called an arbitrator, will rule over 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.1
1 Tex. Fam. Code § 153.0071(a),(b)
What is mediation?
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 can agree to mediation or a judge can order mediation.1
Once an agreement is reached, it will be binding on all parties if the agreement:
- has stated in boldfaced type, capital letters or underlined, that it is not “subject to revocation” (meaning it cannot be reversed or undone);
- is signed by the parties; and
- is signed by each party’s attorney (if the party has an attorney and the attorney is present when the parties sign the agreement).2
However, even if the parties agree on an order through mediation, the judge can refuse to accept the agreement if the judge believes that the agreement is not in the child’s best interest and one of the following is true:
- one of the parties is/was victim of family violence and the judge believes that this negatively affected the victim-parent’s ability to make decisions;
- the agreement would allow a registered sex offender (who committed a sex crime when s/he was age 17 or older) to
- live in the same household as the child; or
- have unsupervised access to the child; or
- the agreement would allow someone who has a history/pattern of past or present physical abuse or sexual abuse directed against any person to:
- live in the same household as the child; or
- have unsupervised access to the child.3
If you are a victim of family violence, you can ask the judge not to refer the case to mediation. If the other party disagrees and wants mediation, the matter can be set down for a hearing to determine whether or not mediation is appropriate.4 However, unless there is extreme violence that you can prove, it can be difficult to convince a judge not to send the case to mediation. 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.4 Note: Child custody mediators are required by law to receive four hours of family violence training.5 Before mediation begins, you may want to ask the mediator if s/he has completed the required training and bring it to the judge’s attention if the mediator has not completed this training.
1 Tex. Fam. Code § 153.0071(c)
2 Tex. Fam. Code § 153.0071(d)
3 Tex. Fam. Code § 153.0071(e-1)
4 Tex. Fam. Code § 153.0071(f)
5 Tex. Civil Practice & Remedies Code § 154.052(b)
What is a parenting plan?
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.1 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.2 A parenting plan is required once a final order about conservatorship and possession of and access to the child is determined.3
1 Tex. Fam. Code § 153.601(4)
2 Tex. Fam. Code § 153.007
3 Tex. Fam. Code §153.603
What is a parenting coordinator?
A parenting coordinator is a third party that helps the parties come to an agreement about parenting issues.1 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.2
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.3
1 Tex. Fam. Code § 153.601(3)
2 Tex. Fam. Code § 153.605
3 Tex. Fam. Code § 153.609
What is a parent education and family stabilization course?
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.1
1 Tex. Fam. Code § 105.009
Who can get custody or visitation
Who can get conservatorship (custody)?
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 Other than a parent, who else can file for managing or possessory conservatorship (custody)? 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; 153.371; 153.372
4 Tex. Fam. Code. § 153.003
Other than a parent, who else can file for managing or possessory conservatorship (custody)?
The following people can file for managing conservatorship:
- a child’s great-grandparent, grandparent, uncle, or aunt can file for managing conservatorship if there is “satisfactory” proof that:
- it is necessary because the child’s present situation is mentally or physically harmful for the child; or
- both parents, or the surviving parent, or the managing conservator filed the petition or consented to the suit;1
- a custodian or person having the right of visitation with or access to the child who was appointed by a court order of another state or country;
- a guardian of the person or of the estate of the child;
- any person, other than a foster parent. who has had actual care, control, and possession of the child for at least six months ending not more than 90 days before filing;
- anyone who lived with the child and the child’s guardian, managing conservator, or parent for at least six months ending not more than 90 days before filing and the child’s guardian, managing conservator or parent is dead when the person files;
- a person who was designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment or to whom consent to adoption has been given in writing;
- a foster parent who cared for the child for at least 12 months ending not more than 90 days before filing;
- a relative of the child within the third degree by consanguinity if the child’s parents are deceased at the time of the filing of the petition;
- a person who was named as a prospective adoptive parent of a child by a pregnant woman or the parent of the child, in a verified written statement to confer standing, regardless of whether the child has been born; or
- a person who is an intended parent of a child or unborn child under a gestational agreement, assuming that the person filing is filing jointly with the other intended parent under the gestational agreement or against the other intended parent under the gestational agreement.2
Note: A grandparent or someone who has had significant past contact with the child cannot file a petition for possessory conservatorship unless there is already an open case involving conservatorship of the child. If there is an open case, the judge can allow the grandparent or other person to ask for possessory conservatorship if the judge finds it is in the best interest of the child.3
1 Tex. Fam. Code § 102.004
2 Tex. Fam. Code § 102.003
3 Tex. Fam. Code § 102.004(b)
I am the child’s grandparent. Can I get possession of or access to the child (visitation)?
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:
- the grandparent’s child’s (in other words, the parent’s) parental rights have not been terminated; and
- the grandparent proves to the judge that denying visitation would significantly harm the grandchild’s physical or emotional well-being; and
- the grandparent’s child (in other words, the parent):
- has been incarcerated for at least 3 months leading up to the grandparent’s visitation request; or
- has been found by the court to be incompetent; or
- is dead; or
- does not have possession of or access to the child.1
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:
- are dead;
- had their parental rights terminated; or
- signed an “affidavit of waiver of interest in child” or an “affidavit of relinquishment of parental rights,” which designated the Department of Family and Protective Services, a licensed child-placing agency, or a person other than the child’s stepparent as the managing conservator of the child.2
1 Tex. Fam. Code § 153.433
2 Tex. Fam. Code § 153.434
I am the child's sibling. Can I get access to the child (visitation)?
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.1
1 Tex. Fam. Code §§ 102.0045; 153.551
What are the rights and responsibilities of a person, other than the parent, who is made a conservator?
If a nonparent, licensed child-placing agency or the Department of Family and Protective Services1 is appointed conservator, they are given a number of rights and responsibilities, including:
- the right to have physical possession and to direct the moral and religious training of the child;
- the responsibility of care, control, protection, and reasonable discipline of the child;
- the responsibility to provide the child with clothing, food, shelter, education, and medical, psychological, and dental care;
- the right to consent for the child to medical, psychiatric, psychological, dental, and surgical treatment and to have access to the child’s medical records; and
- the right to designate the primary residence of the child and to make decisions about the child’s education.2
1 See Tex. Fam. Code § 102.003(7),(6)
2 Tex. Fam. Code § 153.371
What rights a parent can get when s/he committed domestic violence or sexual assault
What factors will a judge look at when deciding if a parent who committed violence or sexual assault can get sole or joint managing conservatorship (custody)?
Whether or not an abusive parent can become the joint or sole managing conservator may depend on how long ago the domestic violence or sexual assault happened. If a parent is filing for sole or joint managing conservatorship, the judge will look at:
- whether during the two-year period of time before filing for conservatorship (or while the court case is pending), the party who is applying for conservatorship was physically abusive or sexually abusive towards:
- his/her spouse;
- a parent of the child; or
- any person under 18 years old;1 and
- whether at any time before filing of the petition (or while the court case is pending):
- a final protective order was issued against either party; or
- either party engaged in a history or pattern of family violence, child abuse or child neglect.2
1 Tex. Fam. Code § 153.004(a)
2 Tex. Fam. Code § 153.005(c)
When will a judge refuse to appoint an abusive parent as a joint or sole managing conservator?
A judge may not appoint joint managing conservatorship between the parties if s/he finds that there is:
- a history or pattern of child neglect;
- a history or pattern of physical abuse or sexual abuse of a parent, spouse or child; or
- if the judge finds that the abusive parent committed sexual assault or aggravated sexual assault that led to the child being conceived (even if there was no arrest or conviction).1 Note: The judge can place other restrictions against a parent who committed sexual assault that led to the child being conceived. See If my child was conceived from sexual assault, can the parent (offender) get any rights to my child? for more information.
If any of the above are true, 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
1 Tex. Fam. Code § 153.004(b)
If my child was conceived from sexual assault, can the parent (offender) get any rights to my child?
If the judge believes that your child (the one who the court case is about) was conceived due to sexual assault or aggravated sexual assault by the other parent (even if there was no arrest or conviction), the judge may not order joint managing conservatorship between the parents (the victim-parent and the offender-parent).1 In addition the judge could terminate the parent-child relationship with the offender-parent as follows:
- The judge has the option to terminate the parent-child relationship if all of the following are true:
- The judge must terminate the parent-child relationship with the offender-parent if all of the following are true:
- during the two years after the birth of the child, the parents did not live together and were not married;
- the judge finds “clear and convincing evidence” that offender-parent committed sexual assault or aggravated sexual assault that led to the child being conceived but there does not need to be an arrest or conviction; and
- termination is in the best interest of the child.3
1 Tex. Fam. Code § 153.004(b)
2 Tex. Fam. Code § 161.007(b)
3 Tex. Fam. Code § 161.007(a)
When can a parent who committed domestic violence or sexual assault be denied all access to a child?
The judge can deny a parent all access to a child if:
- there is a history/pattern of committing family violence within the two years before filing the petition or while the court proceedings are pending (taking into consideration any final protective order that was issued within the past two years);
- the judge finds that the abusive parent committed sexual assault or aggravated sexual assault that led to the child being conceived (even if there was no arrest or conviction); or
- the parties were relatives and had sexual contact that was prohibited by law, which led to the child being conceived (even if there was no arrest or conviction).1
However, even if any of the above are true, the judge can still grant access if:
- the judge decides that allowing the parent access is not a danger to the child’s physical or emotional health;
- the judge decides that access is in the best interest of the child; and
- the judge approves a possession order that will protect the child and any other victim from the abusive parent. The order may require:
- supervised access;
- exchange of the child in a protective setting;
- that the parent not drink alcohol and not use any drugs within 12 hours before the time the child is with him/her (including while the child is with him/her); or
- that the parent attend a batterer’s prevention program or any program the judge finds appropriate.2
1 Tex. Fam. Code § 153.004(d),(f)
2 Tex. Fam. Code § 153.004(d-1)
If the other parent committed domestic violence or sexual assault, can s/he become a possessory conservator?
Possibly. The law says that the judge “must consider” any incident of family violence or sexual abuse in deciding whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator.1 To read about when a judge will place further restrictions on a parent’s possession of and access to a child, go to When can a parent who committed domestic violence or sexual assault be denied all access to a child? and When can a parent who committed violence be ordered to have supervised visitation only?
1 Tex. Fam. Code § 153.004(c)
When can a parent who committed violence be ordered to have supervised visitation only?
The judge can refuse to allow unsupervised visitation (in other words, the parent can only have supervised visitation) if you can prove that there is a history/pattern of past or present child neglect, child abuse, or family violence committed by:
- the parent who is requesting unsupervised visitation;
- any person who resides in that parent’s household; or
- any person who that parent allows to have unsupervised access to the child during that parent’s periods of possession of/access to the child.1
One factor that the judge can consider when making his/her decision is if there was a protective order issued against that parent (or against the other person mentioned above) during the two-year period before the case began up through the present date.2
However, even if any of the above are true, the judge can still allow unsupervised visitation if the parent presents enough evidence that unsupervised visitation is in the child’s best interest and s/he succeeds in convincing the judge.3
1 Tex. Fam. Code § 153.004(e),(g)
2 Tex. Fam. Code § 153.004(f)
3 Tex. Fam. Code § 153.004(e)
If the other parent gets a protective order issued against him/her after the court case is over, do I have the right to know?
Yes. 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.1
1 Tex. Fam. Code § 153.076 (b-1)(3),(c-1)(3),(d)
If the other parent's new partner committed domestic violence or is a registered sex offender, do I have the right to know?
Yes. Each conservator must notify the other conservator in any of the following circumstances:
- S/he lives with for at least 30 days, marries, or intends to marry a person who s/he knows is:
- a registered sex offender; or
- currently charged with a crime that would require the person to register as a sex offender if convicted. Note: The notice must be given as soon as possible – at the latest, 40 days after they begin to live together or 10 days after they get married. The notice must include a description of the crime that led to (or could lead to) the sex offender registration.1
- S/he begins living with a person who s/he knows has a final protective order against him/her (filed by someone else) that is in effect on the date they begin living together. Note: The notice must be given as soon as possible – at the latest, 30 days after they begin to live together.2
- S/he is living with a person against whom s/he gets a final protective after and s/he continues to live with that person even after 60 days have passed since the final protective order was issued. Note: The notice must be given as soon as possible – at the latest, 90 days after the date the final protective order was issued.3
- S/he allows a person against whom s/he gets a final protective after to have unsupervised access to the child and s/he continues to allow that person to have unsupervised access even after 60 days have passed since the final protective order was issued. Note: The notice must be given as soon as possible – at the latest, 90 days after the date the final protective order was issued.3
If the conservator does not properly notify the other conservator within the timeframe required, as explained above, s/he can be guilty of a Class C misdemeanor crime.4
1 Tex. Fam. Code § 153.076(b),(c)
2 Tex. Fam. Code § 153.076(b-1)(1),(c-1)(1)
3 Tex. Fam. Code § 153.076(b-1)(2),(c-1)(2)
4 Tex. Fam. Code § 153.076(d)
How the custody process works
What are the steps for filing for custody?
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.
Where do I file for custody?
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.1
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.2
1 Tex. Fam. Code § 152.102
2 Tex. Fam. Code § 152.201
Are there exceptions to the “home state” rule?
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.1
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:
- which state is better able to protect the child and the parties if there is domestic violence
- the length of time the child has lived outside this state
- the financial circumstances of the parties
- the familiarity that each court has with the particular case2
Temporary Emergency Custody - See Can I get temporary emergency custody?
Jurisdiction Declined by Reason of Conduct – If a parent has behaved in an unjustifiable way, and that action leads them to file for custody in a particular state, the judge can decide not hear the case. For example: If a parent took the child out of the home state without the other parent’s permission, in violation of a custody order, and filed in the new state, the judge could decide that s/he should not hear the case. If the judge does this, steps must be taken to ensure the safety of the child.3
1 Tex. Fam. Code § 152.201(2)
2 Tex. Fam. Code § 152.207
3 Tex. Fam. Code § 152.208
How will a judge make a decision about conservatorship (custody)?
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.”1
Some factors the judge may consider are:
- whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators;
- the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
- whether each parent can encourage and accept a positive relationship between the child and the other parent;
- whether both parents participated in child rearing before the filing of the suit; and the
- the geographical proximity of the parents’ residences.2
In addition, if the child is 12 or older, the judge is supposed to interview with the child in chambers (the judge’s office) to find out the child’s wishes as to which parent s/he prefers to have the right to decide his/her primary (main) residence. If the child is under 12, the judge may interview the child about this but doesn’t have to. Also, a judge may interview a child of any age in chambers to find out the child’s wishes as to possession, access, or any other issue in the case affecting the parent-child relationship.3
Note: Texas law requires judges not to consider the sex or marital status of the person when determining conservatorship or possession of and access to the child.4
Note: Generally, the judge will favor granting both parents frequent contact with their child and have them share the responsibilities of raising their child.5 However, the judge will not grant joint managing conservatorship if s/he finds there is credible (believable) evidence of a family violence, present child neglect or physical or sexual abuse by one parent against the other parent, a spouse or a child.6
1 Tex. Fam. Code § 153.002
2 Tex. Fam. Code § 153.134
3 Tex. Fam. Code § 153.009
4 Tex. Fam. Code § 153.003
5 Tex. Fam. Code § 153.001
6 Tex. Fam. Code § 153.004
What factors will a judge consider for a child who is less than three years old?
A judge has to consider the following factors when deciding a possession order for a child who is less than three years old:
- the caregiving provided to the child before and during the pending court case;
- the effect on the child that may result from separation from either party;
- the availability of the parties as caregivers and the willingness of the parties to personally care for the child;
- the physical, medical, behavioral, and developmental needs of the child;
- the physical, medical, emotional, economic, and social conditions of the parties;
- the impact and influence of people, other than the parties, who will be present during periods of possession;
- the presence of siblings during periods of possession;
- the child’s need to develop healthy attachments to both parents;
- the child’s need for having a continuous routine;
- the location of the homes of the parties and how close they are to each other;
- the need for a temporary possession schedule that will shift little by little towards the future possession schedule that will be in effect once the child reaches age three - the temporary schedule will be based on the age of the child or any minimal or inconsistent contact with the child by a party;
- the ability of the parties to share in the responsibilities, rights, and duties of parenting; and
- any other evidence of the best interest of the child.1
1 Tex. Fam. Code § 153.254(a)
After a custody order is in place
If a custody order is already in place, how can I get it changed?
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:
- the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the order was put in place; or
- the child is at least 12 years old and has filed with the court, in writing, the name of the person who the child prefers to have the exclusive right to decide where s/he will live; or
- the conservator who has the exclusive right to decide where the child will live has voluntarily given up the primary care and possession of the child to another person for at least six months.1
- This subsection does not apply to a conservator who has the exclusive right to decide where the child will live and who has temporarily give up the primary care and possession of the child to another person during the conservator’s military deployment, military mobilization, or temporary military duty.
To file a motion for a change in conservatorship or possession and access, you must fill out certain forms and return them to the court. You can visit your local courthouse to obtain copies of all the needed paper work. The court clerk may be able to answer some questions you have about the paperwork but cannot provide legal advice. You might want to consider contacting a lawyer for help with this. You can find information on lawyer referral services and free or low-cost legal services at our TX Finding a Lawyer page.
1 Tex. Fam. Code § 156.101
Can I change the state/county where the case is being heard?
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.1
1 Tex. Fam. Code § 155.202
If there is a custody order in place, can I take my kids out of the state?
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.
Can a parent who does not have custody have access to the child's records?
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.1 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.
1 Tex. Fam. Code § 153.073