Question 1

What is the difference between conservatorship and possession in Texas?

Accepted Answer

In Texas, custody is divided into two concepts: conservatorship (decision-making authority) and possession and access (physical custody/visitation). Conservatorship refers to the rights and duties regarding the child, including making decisions about education, medical care, and residence. Joint Managing Conservatorship (JMC) is the presumption in Texas, where both parents share rights and duties, though one parent typically has the exclusive right to designate the child's primary residence. Sole Managing Conservatorship (SMC) is less common and awarded when joint conservatorship is not in the child's best interest due to family violence, abuse, neglect, or similar concerns. Possession and access refers to the actual schedule of when each parent has physical custody of the child. Even in JMC arrangements, one parent is typically designated the primary conservator who determines the child's residence within a geographic restriction, and the other parent has a possession schedule (standard possession order or custom schedule).

Question 2

What is the standard possession order in Texas?

Accepted Answer

The Standard Possession Order (SPO) is the default visitation schedule in Texas for the non-custodial parent (possessory conservator) living within 100 miles of the child. The SPO provides: every 1st, 3rd, and 5th weekend from 6:00 PM Friday to 6:00 PM Sunday (or from school dismissal Friday to school resumption Monday), one weeknight evening each week from 6:00 PM to 8:00 PM, alternating holidays (Spring Break alternates yearly, one parent gets Thanksgiving in odd years and the other in even years, Christmas is split with one parent getting first half and the other second half), and extended summer possession of 30 days for the possessory conservator (with the primary conservator getting one weekend during that period). For parents living over 100 miles apart, the SPO is modified to provide one weekend per month and extended time during holidays and summer. Parents can agree to modifications of the SPO, including expanded possession, 50/50 schedules, or other custom arrangements.

Question 3

What factors do Texas courts consider in custody decisions?

Accepted Answer

Texas courts determine custody based on the best interest of the child standard under Texas Family Code § 153.002. Key factors include: emotional and physical needs of the child now and in the future, emotional and physical danger to the child now and in the future, parenting abilities of each parent, stability of each parent's home environment, plans each parent has for the child, acts or omissions by a parent showing that the parent-child relationship is not proper, each parent's willingness to encourage a relationship with the other parent, any history of family violence or abuse, each parent's involvement in the child's life and activities, geographic proximity of parents' residences, child's preference if age 12 or older (though not determinative), and any evidence of drug or alcohol abuse. Courts also presume that joint managing conservatorship is in the child's best interest unless there's a history of family violence or the court finds otherwise. The primary focus is always what arrangement serves the child's best interest, not what the parents prefer.

Question 4

Can a child choose which parent to live with in Texas?

Accepted Answer

In Texas, a child's preference is one factor the court may consider, but the child does not have the right to choose which parent to live with. Under Texas Family Code § 153.009, a child who is 12 years or older may file a written designation of the managing conservator in a sealed envelope with the court. The judge may interview the child in chambers to discuss their preference. However, the child's preference is just one factor among many that the court considers. The judge may give more or less weight to the preference depending on: the child's maturity level and reasoning, whether the preference appears based on manipulation or undue influence, the child's relationship with each parent, and whether the preference aligns with the child's best interest. For children under 12, their preference may still be considered but carries less weight. The court has final authority to determine custody based on the best interest standard, regardless of the child's expressed preference.

Question 5

What is a geographic restriction in Texas custody orders?

Accepted Answer

A geographic restriction, also called a residency restriction, limits where the parent with the right to designate the child's primary residence can live. The most common restriction confines the child's residence to a specific county or contiguous (adjacent) counties. For example, a Travis County order might restrict residence to Travis County and contiguous counties (Williamson, Hays, Bastrop, Caldwell, Burnet, Blanco). Geographic restrictions serve to: keep the child near both parents for regular possession and access, maintain stability in the child's school and community, and allow both parents meaningful involvement in the child's life. The restriction can be modified if the parent seeking to relocate proves by a preponderance of evidence that the move is in the child's best interest and necessary (such as for a job opportunity, to be near family support, or for health reasons). Courts are reluctant to allow moves that would significantly interfere with the other parent's relationship with the child unless there's a compelling reason. Some orders have no geographic restriction, allowing the primary conservator to move anywhere, but this is less common.

Question 6

How do I modify a child custody order in Texas?

Accepted Answer

To modify a child custody order in Texas, you must file a Petition to Modify the Parent-Child Relationship and meet specific legal requirements. For conservatorship changes (decision-making), you must prove either: (1) the circumstances of the child, a conservator, or other party have materially and substantially changed since the order was signed, or (2) the child is at least 12 years old and has filed with the court their preference for the managing conservator. Additionally, modification must be in the child's best interest. For possession schedule changes without changing conservatorship, the standards are somewhat less strict. There's generally a one-year waiting period before you can file to modify conservatorship unless the child's present environment may endanger their physical health or significantly impair emotional development. Factors supporting modification include: parent's failure to follow current order, parental alienation or interference with the other parent's rights, relocation of a parent making the current schedule unworkable, changes in the child's needs as they age, evidence of abuse, neglect, or family violence, or significant changes in a parent's circumstances (remarriage, new job, substance abuse issues). The burden of proof is on the party seeking modification. Courts are hesitant to disrupt stability unless there's a significant reason.

Question 7

What is parental alienation and how does it affect custody in Texas?

Accepted Answer

Parental alienation occurs when one parent engages in behavior that damages the child's relationship with the other parent. Common alienating behaviors include: making negative comments about the other parent to the child, interfering with visitation or communication, falsely accusing the other parent of abuse, undermining the other parent's authority, forcing the child to choose between parents, or withholding information about the child's activities and school. Texas law strongly disfavors parental alienation. Under Texas Family Code § 153.001(a)(6), courts consider each parent's willingness to encourage and accept a positive relationship between the child and the other parent. If a court finds evidence of parental alienation, consequences can include: modification of custody to give the alienated parent more time or primary custody, reduced possession time for the alienating parent, requirement to attend co-parenting counseling, contempt of court findings with fines or jail time, or requiring supervised visitation for the alienating parent. To prove parental alienation, document all incidents, save text messages and emails showing interference or negative comments, keep records of missed visitation, and consider requesting a custody evaluation by a mental health professional.

Question 8

What are supervised visitation and its requirements in Texas?

Accepted Answer

Supervised visitation requires the non-custodial parent's time with the child to occur in the presence of another adult supervisor or at a supervised visitation center. Courts order supervised visitation when there are concerns about the child's safety or wellbeing, including: history of family violence or domestic abuse, evidence of child abuse or neglect, substance abuse issues, mental health concerns, sexual abuse allegations, parental alienation concerns, or lengthy absence from the child's life with need to reestablish relationship gradually. Supervision can occur through a professional agency ($30-$50 per hour typically) or through an agreed-upon family member or friend. The supervisor must remain present and watchful during all visits and may be required to submit reports to the court. Supervised visitation is typically temporary and includes a progression plan outlining steps to work toward unsupervised visits, such as completing parenting classes, undergoing substance abuse treatment and testing, attending counseling, or demonstrating consistent appropriate behavior. Violating the terms of supervised visitation can result in suspension of visitation rights entirely. The goal is usually to transition to unsupervised visits once safety concerns are addressed.

Question 9

Can I get custody if I'm not married to the child's mother in Texas?

Accepted Answer

Yes, unmarried fathers in Texas can establish custody rights, but they must first establish legal paternity. For unmarried parents, the mother has sole custody by default until paternity is established and a court order is issued. To establish paternity: sign an Acknowledgment of Paternity (AOP) form at the hospital or vital statistics office, which is filed with the state, or file a lawsuit to establish paternity through genetic testing. Once paternity is established, the father can seek a court order for conservatorship and possession. Courts apply the same best interest standard for unmarried parents as married parents—there's no legal preference for the mother once paternity is established. The father can seek joint managing conservatorship, standard possession order, or even primary custody if that's in the child's best interest. However, unmarried fathers face additional challenges: burden of proving paternity if disputed, possible delay in establishing legal rights while paternity is resolved, mother's sole custody in the interim period, and need to prove their relationship and involvement with the child. It's critical for unmarried fathers to establish paternity as early as possible to protect their parental rights.

Question 10

What is a custody evaluation and when is it ordered in Texas?

Accepted Answer

A custody evaluation (also called a social study) is a comprehensive assessment by a mental health professional to help the court determine what custody arrangement is in the child's best interest. Evaluations are typically ordered in high-conflict custody disputes where parents fundamentally disagree about custody arrangements, there are allegations of abuse or neglect, there are mental health or substance abuse concerns, parental alienation is alleged, or the case is particularly complex. The evaluator (licensed psychologist, therapist, or social worker) conducts: interviews with both parents, interviews with the child (if age-appropriate), home visits to each parent's residence, psychological testing of parents and sometimes children, review of records (school, medical, criminal, CPS), interviews with collateral sources (teachers, doctors, family members), and observation of parent-child interactions. The evaluator prepares a detailed report with findings and recommendations about custody and visitation. The report is given significant weight by courts, though judges are not bound by the recommendations. Custody evaluations typically cost $3,000-$10,000 and take 2-4 months to complete. Both parents usually share the cost equally unless the court orders otherwise.

Question 11

How does family violence affect custody decisions in Texas?

Accepted Answer

Family violence significantly impacts custody decisions in Texas. Under Texas Family Code § 153.004, there is a rebuttable presumption that appointing a parent who has a history of family violence as a sole or joint managing conservator is not in the best interest of the child. Family violence includes: an act by one family member intended to result in physical harm, bodily injury, assault, or sexual assault, or a threat that reasonably places the other person in fear of imminent physical harm. If family violence is proven, the court may order: sole managing conservatorship to the non-violent parent, supervised visitation for the violent parent, possession exchanges at public places or with law enforcement present, prohibition on overnight possession until safety measures are met, requirement to complete batterer's intervention program, or denial of possession entirely in extreme cases. The presumption against appointing a violent parent can be overcome if the court finds: the parent completed a batterer's intervention program, the parent does not pose a danger to the child, and appointing the parent is in the child's best interest. Protective orders, criminal convictions for family violence, and CPS involvement are all considered in determining custody when violence is alleged.

Question 12

What should I do if the other parent violates the custody order in Texas?

Accepted Answer

If the other parent violates a custody order in Texas, document the violation and take legal action. Steps to take: (1) Document everything—keep a detailed log of all violations with dates, times, and circumstances, save text messages, emails, or voicemails showing violation or refusal to comply, take screenshots of communications, and note any witnesses, (2) Attempt to communicate—send written communication (text or email) referencing the court order and requesting compliance, (3) File a motion for enforcement—this asks the court to enforce the order and hold the violating parent in contempt, penalties for contempt can include fines, jail time, attorney's fees, makeup possession time, and modification of custody, (4) File a police report for serious violations—if the other parent refuses to return the child (custodial interference under Texas Penal Code § 25.03), file a police report and request law enforcement assistance, (5) Seek modification if violations are ongoing—repeated violations may support modification of custody or possession. Do not: withhold child support in retaliation, deny the other parent their court-ordered possession (this makes you also in violation), take matters into your own hands without court involvement, or badmouth the other parent to the child. Courts take violations of custody orders very seriously. Consistent documentation and proper legal action are essential to protecting your rights.

Austin Child Custody FAQ: Common Questions About Texas Custody Law