In every Texas divorce that involves children, a child custody arrangement will have to be created. In some cases, the parents and their divorce attorneys are able to work together to create a child custody arrangement on their own. In others, the matter will be referred to court for a judicial determination of child custody.
There are two different types of child custodyrecognized in Texas - conservatorship and possession and access.
Conservatorship refers to the ability to make important decisions about the child's upbringing. In other states, conservatorship is called "legal custody." Conservatorship may be awarded solely to one parent or jointly to both parents.
Possession and access, on the other hand, refers to where the child will live. In other states, this is called "physical custody." Usually, one person will be designated as the primary parent ("possession") and the other person will have visitation ("access"). Texas has a standardized possession and access schedule, but it is not necessarily applied in every case.
How is custody determined?
When determining child custody, Texas courts focus on promoting the best interests of the child at issue. There is no presumption that primary custody will automatically be awarded to the mother. All other things being equal, fathers have the exact same right to seek primary custody.
Similarly, children do not get to choose which parent they will live with. However, if the child is old enough, the judge will usually interview the child and take his or her preferences into consideration when making the determination. This interview is generally done inside the judge's chambers so that the child's privacy is protected.
When deciding what is in the child's best interests, the court will consider a number of factors including the following:
- The individual desires of each parent
- The wishes of the child
- The child's current and future emotional and physical needs
- Any current or future threats to the child's emotional or physical wellness
- Each parent's ability to successfully parent the child
- Each parent's access to parenting support
- Each parent's plans for the care of the child
- The stability of each parent's home environment
- Any history of acts or omissions that might indicate a person is an unfit parent
- Any history of domestic violence, abuse or other criminal behavior
Every child custody case is unique, and these are only a few of the factors the court will consider. If you are about to get divorced in Texas, be sure to discuss your child custody goals with your attorney early on in the process. The attorney will be able to review all of the factors relevant to your situation in order to help you make your best case.
