Custody

When deciding who will have conservatorship, a judge will try to make an arrangement they believe is in the child’s “best interest.”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 distance between the parents’ residences.²

If the suit is between a parent and a non-parent, there is a “rebuttable presumption” that the parent acts in the child’s best interests and should get custody of the child. This means the court will assume it is true, but the non-parent can present evidence showing that denying custody would harm the child’s physical health or emotional development.³

In addition, if the child is 12 or older, the judge is supposed to interview the child in the judge’s office (chambers) to find out where the child wishes to live. If the child is under 12, the judge may interview the child about this, but they don’t have to. A judge may also interview a child of any age in chambers to find out the child’s wishes and ask about any other issues in the case affecting the parent-child relationship.⁴

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.⁵

Note: Generally, the judge will prefer to give both parents frequent contact with their child and have them share the responsibilities of raising their child.⁶ However, the judge will not grant joint managing conservatorship if they find there is believable (credible) evidence of:

• family violence;
• present child neglect; or
• physical or sexual abuse by one parent against the other parent, a spouse, or a child.⁷

¹ Tex. Fam. Code § 153.002(a)
² Tex. Fam. Code § 153.134
³ Tex. Fam. Code § 153.002(b)
⁴ Tex. Fam. Code § 153.009
⁵ Tex. Fam. Code § 153.003
⁶ Tex. Fam. Code § 153.001
⁷ Tex. Fam. Code § 153.004