Texas Public Policy on Child Custody

Texas public policy dictates that with regards to child custody, the State’s policy should:

(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child;  and
(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

Parental Presumptive Right

It is a fundamental and presumptive right in Texas and in most states that a parent or both parents should have the right and responsibility of raising their own child or children.

Though vested with this fundamental right, each parent will have varying and or equal parental rights depending upon their classification on conservatorship.

Conservatorship in Texas

In Texas, the court or by the parties’ agreement, will either appoint one (1) parent as Sole Managing Conservator of the child or children in the marriage and the other parent as Possessory Conservator of the child or children of the marriage; or (2) appoint both parents as Joint Managing Conservators of the child or children of the marriage.  Parental rights and responsibilities or duties will then be allocated between both parents either by the court or by agreement of the parties.

Equal Parental Rights

Moreover, in 1973, Texas adopted the Equal Rights Amendment and provided that in deciding custody cases, the court “shall” consider “the qualifications of the respective parents without regard to the sex of the parent.” For most Texas child custody cases, and because both parents typically share in the responsibility of raising their child or children, both parents usually agree on being appointed as Joint Managing Conservators, with one parent having “Primary Residence.”

Though frequently a contested issue, if the parents cannot agree on conservatorship, the judge or jury can appoint one parent as sole managing conservator or appoint both parents as joint managing conservators.

Primary Residence

Primary residency by one parent means that although one or both parents may be Joint Managing Conservators, one parent will have the child or children live with him or her at the parent’s primary residence or designated residence.  This provides for and ensures that the child or children maintain a status quo or stability in terms of where the child or children live, their place of abode, and more importantly their school district on where the child or children go to school or public education.

Parenting Classes

Based on experience and history, it is generally beneficial for a parent or both parents to take parenting classes so as to improve the ability of the parents to work together in raising their child or children and in the best interest of their child or children.  Though the parents may be divorced or separated, children benefit the most if both parents work together in the custody, visitation and conservatorship of their child or children.

However, in cases where parents do not work together or one parent is uncooperative, Texas allows for the visitation of the child or children to be managed either through a standard possessory order, custom possessory order or some other supervised visitation method in cases where a history of family violence has been documented.  Ultimately, the courts look to the best interest of the child or children when it comes to custody and visitation.

Section 153.002 of the Texas Family Code states in part:

Sec. 153.002.  BEST INTEREST OF CHILD.  The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.

Child Visitation

The Texas Family Code recognizes the importance of parental involvement in the child development especially when parents are divorced.  Consequently, the Texas Family Code provides for minimum visitation schedules for parents.

Note: These guidelines are provided for children over three (3) years of age. Although most courts apply the following visitation schedules even for children under three, it is recommended that visitation schedules for children under three should involve more frequent exchanges between parents.

Standard Child Visitation in Texas

For Parents Who Reside 100 Miles or Less Apart the Texas Family Code Provides:
Sec. 153.312.  PARENTS WHO RESIDE 100 MILES OR LESS APART.  (a)  If the possessory conservator resides 100 miles or less from the primary residence of the child, the possessory conservator shall have the right to possession of the child as follows:
(1)  on weekends throughout the year beginning at 6 p.m. on the first, third, and fifth Friday of each month and ending at 6 p.m. on the following Sunday except that, at the possessory conservator’s election made before or at the time of the rendition of the original or modification order, and as specified in the original or modification order, the weekend periods of possession specified by this subdivision that occur during the regular school term shall begin at the time the child’s school is regularly dismissed and end at 6 p.m. on the following Sunday; and
(2)  on Thursdays of each week during the regular school term beginning at 6 p.m. and ending at 8 p.m., or, at the possessory conservator’s election made before or at the time of the rendition of the original or modification order, and as specified in the original or modification order, beginning at the time the child’s school is regularly dismissed and ending at the time the child’s school resumes, unless the court finds that visitation under this subdivision is not in the best interest of the child.
(b)  The following provisions govern possession of the child for vacations and certain specific holidays and supersede conflicting weekend or Thursday periods of possession.  The possessory conservator and the managing conservator shall have rights of possession of the child as follows:
(1)  the possessory conservator shall have possession in even-numbered years, beginning at 6 p.m. on the day the child is dismissed from school for the school’s spring vacation and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in odd-numbered years;
(2)  if a possessory conservator:
(A)  gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 days beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each; or
(B)  does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 consecutive days beginning at 6 p.m. on July 1 and ending at 6 p.m. on July 31;
(3)  if the managing conservator gives the possessory conservator written notice by April 15 of each year, the managing conservator shall have possession of the child on any one weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during one period of possession by the possessory conservator under Subdivision (2), provided that the managing conservator picks up the child from the possessory conservator and returns the child to that same place; and
(4)  if the managing conservator gives the possessory conservator written notice by April 15 of each year or gives the possessory conservator 14 days’ written notice on or after April 16 of each year, the managing conservator may designate one weekend beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, during which an otherwise scheduled weekend period of possession by the possessory conservator will not take place, provided that the weekend designated does not interfere with the possessory conservator’s period or periods of extended summer possession or with Father’s Day if the possessory conservator is the father of the child.

For Parents Who Reside 100 Miles or More Apart the Texas Family Code Provides:
Sec. 153.313.  PARENTS WHO RESIDE OVER 100 MILES APART.  If the possessory conservator resides more than 100 miles from the residence of the child, the possessory conservator shall have the right to possession of the child as follows:
(1)  either regular weekend possession beginning on the first, third, and fifth Friday as provided under the terms applicable to parents who reside 100 miles or less apart or not more than one weekend per month of the possessory conservator’s choice beginning at 6 p.m. on the day school recesses for the weekend and ending at 6 p.m. on the day before school resumes after the weekend, provided that the possessory conservator gives the managing conservator 14 days’ written or telephonic notice preceding a designated weekend, and provided that the possessory conservator elects an option for this alternative period of possession by written notice given to the managing conservator within 90 days after the parties begin to reside more than 100 miles apart, as applicable;
(2)  each year beginning on the day the child is dismissed from school for the school’s spring vacation and ending at 6 p.m. on the day before school resumes after that vacation;
(3)  if the possessory conservator:
(A)  gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 42 days beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each; or
(B)  does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 42 consecutive days beginning at 6 p.m. on June 15 and ending at 6 p.m. on July 27;
(4)  if the managing conservator gives the possessory conservator written notice by April 15 of each year the managing conservator shall have possession of the child on one weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during one period of possession by the possessory conservator under Subdivision (3), provided that if a period of possession by the possessory conservator exceeds 30 days, the managing conservator may have possession of the child under the terms of this subdivision on two nonconsecutive weekends during that time period, and further provided that the managing conservator picks up the child from the possessory conservator and returns the child to that same place; and
(5)  if the managing conservator gives the possessory conservator written notice by April 15 of each year, the managing conservator may designate 21 days beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each, during which the possessory conservator may not have possession of the child, provided that the period or periods so designated do not interfere with the possessory conservator’s period or periods of extended summer possession or with Father’s Day if the possessory conservator is the father of the child.

Military Visitation Orders While on Active Military Duty

In child visitation and conservatorship cases involving military personnel parents, the Texas Family Code allows for the following minimum terms.  Again, the parents, as with any child visitation or conservatorship case, can always agree on a different schedule or terms of conservatorship.  Texas courts will always approve visitation and conservatorship terms so long as it is in the best interest of the child or children in Texas.

Sec. 153.3161.  POSSESSION DURING MILITARY DEPLOYMENT.  (a)  In this section, “military deployment” means military duty ordered for a period of more than six months during which the person ordered to duty:
(1)  is not provided the option of being accompanied by the person’s child; and
(2)  is serving in a location where access to the person’s child is not reasonably possible.
(b)  In addition to the general terms and conditions of possession required by Section 153.316, if a possessory conservator or a joint managing conservator of the child without the exclusive right to designate the primary residence of the child is currently a member of the armed forces of the state or the United States or is reasonably expected to join those forces, the court shall:
(1)  permit that conservator to designate a person who may exercise possession of the child on behalf of that conservator during any period that the conservator is deployed under a military deployment; and
(2)  if the conservator elects to designate a person under Subdivision (1), provide in the order for possession of the child by the designated person under those circumstances, subject to the court’s determination that the possession is in the best interest of the child.
(c)  If the court determines that the possession is in the best interest of the child, the court shall provide in the order that during periods of military deployment:
(1)  the designated person has the right to possession of the child for the periods and in the manner in which the deployed conservator would be entitled to exercise possession if not deployed;
(2)   the child’s other parent and the designated person are subject to the requirements of Section 153.316, with the designated person considered for purposes of that section to be the possessory conservator;
(3)  the designated person has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the person has possession of the child; and
(4)  the designated person is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.
(d)  After the military deployment is concluded, and the deployed parent returns to that parent’s usual residence, the designated person’s right to possession under this section terminates and the rights of all affected parties are governed by the terms of any court order applicable when a parent is not deployed.