Custody and Possession FAQ

1. How do the Courts determine custody?

The best interest of the child is always the primary consideration of the court in determining the issues of conservatorship and possession of and access of the child.

2. Isn't it true that the Courts favor the female spouse having custody of the children?

By law, courts must consider the qualifications of a spouse or party without regard to their marital status or to the sex of the party or the child in determining whether to appoint either parent or party as sole managing conservator or appoint the parties joint managing conservators.

3. What is joint conservatorship?

First, to address an erroneous definition, joint conservatorship does not mean (necessarily) that one parent has the child half of the time and the other has the child the remainder of the time. Although a joint managing conservatorship can consist of a an equal split in possession of the child, it more often consists of one parent having the child the majority of the time and the other parent having visitation/possessory rights that are much less than half. Joint managing conservators means that both conservators (parents) share in the major decision making rights, privileges, duties and powers held by the parent pertaining to the child such as the right to establish the primary residence of the child; the right to consent to medical, dental, and surgical treatment; the right to receive and give receipt for periodic payments of support for the child; the right to represent the child in legal actions; the right to consent to marriage or enlistment in the armed forces; and the right to make educational decisions, to name a few.

4. Where will the Courts start with regards to conservatorship?

Texas has enacted a presumption that parents should be joint managing conservators. Of course, this presumption is rebuttable. The presumption is based on the notion that it is usually in the child's best interest to have both parents play a major role in all aspects of the child's life.

5. Under what circumstances can the joint managing conservatorship pesumption be rebutted? How can I avoid joint managing conservatorship and be named sole managing conservator?

The presumption can be rebutted by showing that a joint managing conservatorship arrangement is either not workable between the parents (i.e., you cannot make decisions together regarding the child) or a showing that joint conservatorship would not be in the child's best interest.

6. At what age can a child sign an affidavit choosing a managing conservator?

At age twelve (12) a child may, in writing, inform the court of his/her choice of managing conservator and the court will consider that along with other evidence relating to what is in the child's best interest in making a decision.

7. Can a child testify at a custody trial?

In a nonjury trial, the judge must, if requested, interview a child who is 12 years of age or older in chambers. Additionally, the judge has discretionary authority to interview a child under 12 years of age.

8. How can I get the custody and/or visitation provisions of my divorce decree changed?

By filing a Motion to Modify.

9. I have specific days and times for visitation but my ex refuses to allow me to see our child on those days. What can I do?

File a Motion for Contempt (enforcement).

10. May I stop child support payments if I am not allowed visitation?

No. The payment of child support is not an exchange or condition precedent to your having visitation. The proper procedure would be for you to file a Motion for Contempt.

11. I'm not receiving the child support as ordered, may I deny visitation from my ex?

No. A conservator's right to session/visitation is not conditioned on whether he/she pays child support as ordered. The proper procedure would be for you to file a Motion for Contempt.

12. I will have my child for 30 days during the summer -- must I still pay child support during that time?

Unless your divorce decree or court order specifically says otherwise, you must continue to pay child support during that 30 day period.

13. Can the Court limit where the children live?

The Texas Family Code provides that when a joint managing conservatorship is made, the Court must designate the conservator who has the exclusive right to determine the primary residence of the child and establish the geographic area in which the conservator shall maintain the child's primary residence or specify that the conservator may designate the child's primary residence without regard to geographic location.

14. What are temporary orders?

Temporary orders are orders issued by a court, after either a hearing or an agreement by the parties, which are designed to last until the divorce is final. Practitioners sometimes refer to them as "band-aid" orders. Temporary orders commonly address issues such as child support, custody and visitation of the children, exclusive use of the marital residence, exclusive use of vehicles, alimony, and interim attorneys fees.

15. If I am not married to my child's other parent, what can I do?

If you are not married to your child's other parent, you can file a suit to establish parentage. Once parentage is established, possession, child support, and visitation are set out as in a divorce case. Additionally, the courts can order retroactive child support.

16. Does the Court have guidelines as to possession of children?

The Texas Family Code sets out a standard possession order which is presumed to be the minimum amount of time that you could see your children, so long as they are over the age of three. If your child is under the age of three, Texas law requires that the court render an order appropriate under the circumstances for possession of a child of less than three years of age.

17. Where can I get information about the effect of divorce on children?

An excellent resource regarding the effect of divorce on children is Practical Parent Education. Practical Parent Education provides a four-hour seminar regarding the effect of divorce on children (For Kid's Sake). This seminar was the result of collaboration between Judge Curt B. Henderson, Practical Parent Education, and the Plano Bar Association. Nancy B. Amick was President of the Plano Bar Association when this program was developed and was instrumental in its establishment. Additionally, please see our resource list for books which will give you additional information.