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Texas: There is No Such Thing as Sole Custody Unless One Parent is Dead | San Antonio Criminal Lawyer | Bexar County Family Attorney | Law Office of Bill Baskette
110 West Nueva Street | San Antonio, TX 78204



Texas There Is No Such Thing As Sole Custody Unless One Parent Is Dead

Texas: There is No Such Thing as Sole Custody Unless One Parent is Dead

Texas: There Is No Such Thing as Sole Custody Unless One Parent is Dead Did that headline catch your attention? Well, that is not quite true, but almost, considering that a rebuttable presumption that both parents should share custody after divorce is written strongly into Texas law. The public policy of Texas is that a kid should have frequent contact with a parent if that parent has a history of acting in the child’s best interest, and that divorced parents should try to cooperate in raising their children after divorce. The state puts the parent-child relationship above the disintegration of the marital one. Legal Terminology When parents divorce, most states ask who will have “custody” of the children. Texas hasn’t used the word custody for more than 30 years. Instead, it asks who will have “conservatorship” of the children. Conservatorship speaks to caring for and protecting a child, rather than possessing him or her, as “custody” implies. A Texas court may appoint either “joint managing conservators” or a “sole managing conservator.” Joint managing conservatorship means that two people (usually the parents) share traditional “rights and duties” of parenthood. In joint conservatorship, the court may give a particular right or duty to each parent independently, to them to work out together or exclusively to one of them. While most states call the parent with the right of “visitation,” Texas uses the term “possessory conservator.” The state prefers to consider time spent with a parent as “parenting time” instead of a “visit.” If one parent is appointed the sole managing conservator, that parent can decide where the child will live. The other may be the possessory conservator with rights to spend parental time with the child according to the conditions in the court order. The Court’s Presumption Now that we have our Texas family law terms straight, let’s get to the issue of joint conservatorship. It could be said (tongue in cheek) that unless you’re dead, if you get divorced you get to be a joint managing conservator of your kids. That is because the Texas Family Code says that it shall be presumed that it is in the best interest of a child for both parents to be managing conservators, with narrow exception. This presumption was set in the 1990s by the Texas legislature as part of a larger overhaul of the Family Code in an effort to diminish the adversarial nature of custody decisions — to get rid of the feeling that one parent wins and the other loses. Rather the law focuses on the child’s best interest and on supporting continuing relationships with both parents when possible. Texas sets the bar high for overcoming the presumption favoring joint managing conservators. However, the presumption can be rebutted by any of the following three things:
  • “History of family violence”
  • Danger that joint appointment is not in the child’s best interest because it would “significantly impair the child’s physical health or emotional development”
  • Previous relinquishment of the care of the child for at least one year
Once the presumption has been rebutted, the court makes the final decision based on several factors that help determine whether joint managing conservatorship is in the child’s best interest:
  • Will the child’s “physical, psychological, or emotional needs and development benefit”?
  • Can the parents make decisions together putting the child first?
  • Can each parent encourage a good relationship between the child and the other parent?
  • Did both parents care actively for the child historically?
  • How close do the parents live to each other?
  • If the child is at least 12, does he or she have a preference about which parent should decide where the child should live?
  • Are there any other important factors to consider?
Bottom Line The bottom line is that in Texas if both parents were decent parents during the marriage, they will likely get the chance to continue to parent as joint managing conservators after the marriage ends. If you face divorce or separation in Texas and have kids, talk to an experienced family law attorney to learn about what conservatorship issues are likely to come up in your divorce. Caveat If your child has an involved mom or dad, whether you are divorced or never married, be careful to only refer to that actual parent as “Mom” or “Dad”. Do not call the child’s stepparent Mom or Dad. It is confusing to the child and, until that person adopts the child, the courts do not recognize them as parents. The actual, biological parent may also feel “left out” and less willing to work out disagreements. Ask your lawyer about the Children’s Bill of Rights and Loving and Care Order that may be used in your local Texas court.