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Custody is not a legal term in Texas family law. Texas family law breaks down the lay term of custody into two areas: Conservatorship and Possession. Conservatorship relates to how parents will make major decisions on the behalf of their children. Possession relates to the time sharing plan that parents will have for their children. Given that Custody is not a legal term, but is a commonly used lay term we will define it for the purpose of this discussion. Custody is the time sharing arrangements between parents.
Except in the rarest of cases, custody of a couple's children will be shared after the divorce. We strongly prefer to help our clients reach agreements on custody through reasonable discussion, without resorting to contested litigation and court-ordered determinations. Custody battles are very hard on the child, the parents, and family relationships.
In negotiating custody agreements, we encourage clients to place the child's best interests first. This includes protecting the child's positive relationship with both parents. In joint custody, both parents will need to communicate and to share their children for many years to come. We help clients carefully consider how to best lay the groundwork for a workable co-parenting relationship over time.
Custody Law
Decrees and agreements, define the legal rights, duties, and responsibilities of each parent. In Texas, joint managing conservatorship and shared possession are presumed to be in the best interests of the children.
Often there is confusion between the legal terms "conservatorship" and "possession." Joint managing conservatorship does not mean that each parent has possession of the child 50% of the time. Nor does it mean that one parent will not be required to pay child support. Rather, it means that important decisions regarding the child's life may be made jointly. In a situation where both parents are appointed joint managing conservators their possession arrangements might be 50/50, but the time sharing arrangements might be consistent with a standard possession schedule (discussed below) as well.
If one parent is awarded sole managing conservator by the court, it does not mean that the other parent is unfit. In a sole managing conservatorship situation, the parent appointed sole managing conservator will make all major decisions regarding the child(ren). In nearly all cases, the other parent will continue to share possession of the child.
Divorcing parents can adopt any reasonable possession schedule or arrangements to which they both agree. However, in many cases families follow the standard possession schedules defined in the Texas Family Code. According to this standard schedule, the custodial parent has possession of the child the majority of the time during the school year. The non-custodial parent has the child every 1st, 3rd, and 5th weekend, on Thursday evenings during the school year, alternate holidays, and for 30 days in the summer.
It is also fairly common to see an "expanded standard" schedule (which more closely approaches a 50/50 split) in which the non-custodial parent keeps the child overnight on Thursdays and Sundays as well.
Other custody-related issues include grandparent rights, domicile issues (a requirement that both parents stay in Travis County, for example), and child support. These all should be discussed with your attorney.
In the many conflicted cases, a guardian ad litem or an attorney ad litem may be appointed to represent the interests of the child. These guardians may rely on assistance from mental health professionals to perform an evaluation of the child, the parents, and the best solution for all concerned.
More information can be found under Frequently Asked Questions.