Child custody in Texas

What the law tells the judge to look at

In the order the law lists them.

1. Whether joint managing conservatorship will help your child's physical, mental, and emotional needs and growth.Tex. Fam. Code § 153.134(a)(1)
2. Whether each parent can put the child's welfare first and make shared decisions that are best for the child.Tex. Fam. Code § 153.134(a)(2)
3. Whether each parent can encourage and accept a good relationship between the child and the other parent.Tex. Fam. Code § 153.134(a)(3)
4. Whether both parents took part in raising the child before the case was filed.Tex. Fam. Code § 153.134(a)(4)
5. How close the parents live to each other.Tex. Fam. Code § 153.134(a)(5)
6. If the child is 12 or older, the child's wishes about which parent should decide where the child lives.Tex. Fam. Code § 153.134(a)(6)
7. Any other important factor.Tex. Fam. Code § 153.134(a)(7)

Other things the judge considers

• The child's best interest must always be the main thing the judge considers in deciding conservatorship and possession.Tex. Fam. Code § 153.002(a)
• Texas policy is for children to have frequent and continuing contact with parents who have shown they can act in the child's best interest, to have a safe, stable, and nonviolent home, and for parents to share the rights and duties of raising the child after they separate.Tex. Fam. Code § 153.001(a)
• In deciding who will be managing conservator, the judge must consider whether a party had a history or pattern of family violence, child abuse, or child neglect, and whether a final protective order was made against a party.Tex. Fam. Code § 153.005(c)
• A parent must be named sole managing conservator, or both parents joint managing conservators, unless that would significantly impair the child's physical health or emotional development.Tex. Fam. Code § 153.131(a)
• Any limits on a parent's time with the child must be no greater than what is needed to protect the child's best interest.Tex. Fam. Code § 153.193
• If the judge sets a schedule that is different from the Standard Possession Order, the judge may consider the child's age, development, circumstances, and needs, and each parent's circumstances.Tex. Fam. Code § 153.256

What the judge may not consider

The judge must look at each person's qualifications without regard to their marital status or to the sex of the parent or the child. A court also cannot make a parent's time with the child depend on paying child support.

Joint custody

Yes. The law presumes it is in the child's best interest to name both parents joint managing conservators. A finding of a history of family violence between the parents removes this presumption. Joint managing conservatorship is about sharing rights and duties. It does not require equal time with the child.

The child's wishes

A child 12 or older can tell the judge, in the judge's office (chambers), which parent the child wants to decide where the child lives. If a party, the child's amicus attorney, or the child's attorney ad litem asks, the judge must interview a child 12 or older, and the judge may interview a younger child. The judge still decides what is best. The judge cannot interview the child about an issue a jury will decide.

Domestic violence

The judge must consider evidence of physical abuse or sexual abuse by a party against a spouse, a parent of the child, or anyone under 18, if it happened within 2 years before the case was filed or while the case is going on. The judge may not name parents joint managing conservators if there is credible evidence of a history or pattern of child neglect, or physical or sexual abuse by one parent against the other parent, a spouse, or a child. The law presumes it is not in the child's best interest to give that parent sole managing conservatorship or the right to decide where the child lives. The law also presumes unsupervised visits are not in the child's best interest if there is credible evidence of a history or pattern of abuse, neglect, or family violence by that parent or by someone in that parent's home. If a history or pattern of family violence in the 2 years before filing is shown, the judge may not allow that parent access unless the judge finds it will not endanger the child and orders protections, such as supervised visits, exchanges in a protected place, no alcohol or drugs before visits, or a battering intervention program. A protective order made in the last 2 years must be considered.

Who has custody before a court order

Texas law does not give either parent custody by default. Until there is a court order, each legal parent has the same rights, including the right to have the child and decide where the child lives. When parents are not married, the mother is a legal parent. The father becomes a legal parent only by signing an Acknowledgment of Paternity with the mother, by a court order, or by a legal presumption (for example, being married to the mother). Without a court order, neither parent can make the other follow a visitation schedule.

Establishing paternity

How

Both parents can sign an Acknowledgment of Paternity (AOP) with an AOP-certified entity, such as a hospital or a local child support office. It can be done with DocuSign through a certified entity. Once filed with the Vital Statistics Unit, it is the same as a court finding of paternity and gives the father all the rights and duties of a parent. Either signer can cancel it by filing a Rescission of the Acknowledgment of Paternity (form VS-158) within 60 days after it is filed, or before a court case about the child starts, whichever comes first. After that, it can only be challenged in court for fraud, duress, or a material mistake of fact. If the mother was married to someone else, her husband must also sign a Denial of Paternity. You can also ask a court to decide paternity in a paternity case.

Form

Acknowledgment of Paternity (AOP)

Cancellation form

Rescission of the Acknowledgment of Paternity (VS-158)

Agency

Office of the Attorney General of Texas, Child Support Division (AOP Hotline)
https://www.texasattorneygeneral.gov/child-support/paternity/acknowledgment-paternity-aop
1-866-255-2006

Changing an order

You can ask the court to change a custody or visitation order if the change is in your child's best interest and at least one of these is true:

• The circumstances of the child, a conservator, or another affected party have materially and substantially changed since the order (or since the mediated agreement it is based on)
• The child is at least 12 and has told the judge in chambers whom the child wants to decide where the child lives
• The parent who decides where the child lives has voluntarily left the child with someone else for at least 6 months.

Leaving the child with someone during military deployment does not count. A parent's military deployment by itself is not a material change. Being found in contempt for denying court-ordered time, after at least 3 earlier contempt findings, counts as a material change.

Waiting period: If you ask to change who decides where the child mainly lives within 1 year after the order, you must attach a sworn statement (affidavit or declaration) with facts showing that the child's current home may endanger the child's physical health or significantly impair the child's emotional development, or that the parent with that right agrees, or that this parent left the child with someone else for at least 6 months. The judge will not set a hearing unless the facts are enough.

Law: Tex. Fam. Code §§ 156.101, 156.102, 156.105, 156.107

If the other parent does not follow the order

If the other parent does not follow the possession order, you can file a motion for enforcement in the court that made the order. The judge can hold the parent in contempt, which can mean up to 6 months in jail, a fine of up to $500 for each violation, and paying your attorney's fees and court costs. Unless the other parent shows good cause, the judge must order make-up time of the same type and length as the time you missed (it can include weekends, holidays, and summer), to be used within 2 years. You choose when the make-up time happens. If the parent who denied the time was already found in contempt at least 3 times for this, the make-up time must be twice as long. If the child is being kept from you in violation of an order, you can also ask for a writ of habeas corpus. Not paying child support does not allow a parent to deny visits, and denied visits do not allow a parent to stop paying support.

Law: Tex. Fam. Code §§ 105.006(d), 157.001, 157.168, 157.371-157.374

Grandparent visitation

Yes, but only in limited cases. A biological or adoptive grandparent can file for possession of or access to a grandchild, on its own or in a modification case, with a sworn statement (affidavit) showing that denying access would significantly impair the child's physical health or emotional well-being. The judge can order reasonable visits only if:

• At least one parent still has parental rights
• The grandparent proves by a preponderance of the evidence that denying access would significantly impair the child's physical health or emotional well-being (this overcomes the presumption that a parent acts in the child's best interest)
• The grandparent is the parent of a parent who has been in jail or prison during the 3 months before filing, has been found incompetent by a court, has died, or does not have actual or court-ordered possession of or access to the child.

A grandparent cannot ask if both biological parents have died, lost their rights, or signed certain relinquishment papers, and the child has been adopted (or is being adopted) by someone other than a stepparent.

Custody by someone who is not a parent

A grandparent or other relative within the fourth degree (for example, an aunt, uncle, or adult sibling) can file for managing conservatorship if the child's present circumstances would significantly impair the child's physical health or emotional development, or if the parents filed or agree. A person who has had exclusive care, control, and possession of the child for at least 6 months, ending no more than 90 days before filing, can also file. (Different rules apply to foster parents and relatives with a child placed by the state child protection agency.) A nonparent suing a parent must file a sworn statement with facts showing that denying the request would significantly impair the child's physical health or emotional development, or the case will be dismissed. In a case between a parent and a nonparent, the law presumes the parent acts in the child's best interest. The nonparent must prove by clear and convincing evidence that denying the request would significantly impair the child's physical health or emotional development, and the judge must state the specific facts in the order. If both parents have died, the judge may consider naming a grandparent, aunt, or uncle as managing conservator.

Custody and visitation in the order

Yes. A protective order can set possession of and access to a child of a party, if the person who gets the time is the child's parent. It can also forbid a party from taking a child away from the person named in the order or out of the court's area. A protective order made in the 2 years before a custody case must be considered in deciding custody and visitation.

Military parents

If a conservator is ordered to military deployment, mobilization, or temporary military duty far away, either parent can ask for temporary orders without showing any other change. The judge can let the other parent, or a person the deployed parent chooses, use the deployed parent's rights or visits. The temporary orders end when the service member returns. Military duty by itself is not a reason to permanently change an order. A deployed parent can ask for an expedited hearing and to testify electronically.

Law: Tex. Fam. Code §§ 153.701-153.709, 156.105

Preventing abduction

Form: No statewide form. You can ask the court for measures to prevent international parental child abduction, such as supervised visits, travel limits, surrender of passports, or a bond.

Law: Tex. Fam. Code §§ 153.501-153.503