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. Typically, the primary goal of any court is to maintain the status quo if the evidence indicates that the current scheme of access to the children is working well for the children.

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 presumption 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?

Recent changes in Texas Family Law eliminated the option for a child to sign a document informing the court of his/her choice of which parent he/she wants to live with primarily. The current law provides that upon the proper request by a parent or attorney for a parent, the Court is obligated to interview a child who is 12 years of age or older to determine the child's wishes as to conservatorship and that the Court must consider the child's desires in conjunction with other evidence relating to what is in the child's best interest.

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?

The only way to formally change current custody and/or visitation provisions in a Court Order is to file a Petition to Modify with the Court and request that the Court review and revise the prior Orders.

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?

Many levels of options are available for relief based on the specific facts of the underlying problem. Most often the remedy is to file with the Court a Motion to Enforce the provisions of the Order and/or a Motion for Contempt asking the Court to hold the disobedient party in contempt. Contempt remedies can range from having the disobedient party held in jail to merely having the Court Order extended periods of possession to the parent who has been denied access to the most extreme circumstance of the Court issuing a change in primary custody decisions.

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 Enforcement and/or 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 Enforcement and/or 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 conservatorship is established, the Court must designate the conservator who has the exclusive right to determine the primary residence of the child. Most courts believe that included in that obligation is the additional obligation to either specifically 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.When they apply, residence restrictions for the children are most often limited to the current county of residence and counties bordering that county, but in many cases the parties to a divorce will establish for themselves residence boundaries appropriate to their lifestyles and circumstances so as to keep both parents in reasonable proximity to the children and their activities so that both parents can remain active participants in their children's lives.

14. What are Temporary Orders?

Temporary orders are orders issued by a court, after either a hearing or an agreement made by the parties,Temporary Orders are intended to provide the parties with some structure regarding the possession and exchange of children, child support and the expenditure of the parties' marital funds 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 in a final order, much the same 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.