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Legal Information: Texas


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November 5, 2020

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)