Texas law has changed when it comes to the subject of child custody. This is in keeping with the state’s public policy to:
The state tossed out much of the custody terminology most people are familiar with, the feeling being that those terms had too many negative connotations. So when parents are separated or getting divorced, the law now refers to “custody” as “conservatorship.” It also replaced “legal custody” and “physical custody” with “managing conservatorship” and “possessory conservatorship.” However, although the terms are different, the basic concepts are similar.
“Managing conservatorship” refers to a parent’s role in making critical decisions about the child’s life, such as the child’s medical needs, and educational, cultural, and religious upbringing. “Possessory conservatorship” refers to where the child will reside at any particular time, and when a parent will have “access” to the child (formerly known as “visitation”).
Under Texas law there’s a presumption that the parents should have joint managing conservatorship. (Tex. Fam. Code – Chapter 153 §153.131 (b).) In other words, both parents have input in the major decisions regarding the child’s life. If the court believes joint managing conservatorship isn’t in the child’s best interest, it can appoint one parent as the “sole” managing conservator. You might see this in situations where one of the parent’s decision-making ability has been compromised, such as by untreated alcohol or drug abuse, or where there’s a history of domestic violence or child abuse.
Regarding possessory conservatorship, the law gives parents a lot of leeway in setting the terms of when the child will stay with each of them, and when the parent with whom the child isn’t residing will have access to the child. (Tex. Fam. Code – Chapter 153 §153.311.)
If they can’t agree on a schedule, the statute provides a “standard possession order” which lays out in detail the times when each parent will spend with the child. The specifics of the order vary depending on how far apart the parents live from each other. Additionally, the standard possession order doesn’t necessarily apply to children under the age of three. (Tex. Fam. Code – Chapter 153 §153.254.)
Note that if the parents have joint managing conservatorship, that doesn’t automatically mean they’ll have equal or near-equal possessory time with, or access to, the child. (Tex. Fam. Code – Chapter 153 §153.135.)
If the court feels the standard possession order isn’t appropriate in a particular case, it can change the terms. (Tex. Fam. Code – Chapter 153 §153.253.) Judges can place restrictions on possession orders if they believe it’s necessary to protect a child’s or parent’s safety or well-being. For example, the court can order that a parent not drink alcohol before and during spending time with the child. And if judges determine that a parent shouldn’t be left alone with a child, they can issue a “supervised possession order,” which allows access to the child only in the presence of a third party.
Be advised that a parent’s wrongful denial of access to a child, in violation of a court’s order, can result in serious consequences for that parent.
In the previous section, you saw the phrase “the best interest of the child,” which is a term that is crucial in any child-reated decisions. Texas law specifically states that the best interest of the child must be the court’s primary consideration in determining issues of conservatorship and possession of and access to the child. (Tex. Fam. Code – Chapter 153 §153.002.)
To assist judges in reaching a decision, the Texas Supreme Court, in the case of Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), provided them with a list of factors to consider. These include:
Notice that the list of factors references "a child’s wishes". But that doesn’t mean the child’s preference is binding on the court. Barring certain circumstances, a child won’t have the final say about which parent to live with, or whether to spend time with a parent, until the child reaches the age of 18.
To request a change to a conservatorship or possession and access order, you have to file a “Petition to Modify the Parent-Child Relationship” with the court.
There are limited circumstances under which a Texas court will grant a request for modification of an existing order. A court will only permit a modification if the change is in the best interests of the child, and the request is based on one or more of the following:
Be advised that the last item on the above list doesn’t apply if the conservator relinquished primary care and possession due to military service. (Tex. Fam. Code – Chapter 156 §156.101 (b).)
Modifying an order can be a complex process, and it might be wise to consult with a family law attorney in advance if you think a change to custody may be in your child's best interest.