Texas Child Custody And Visitation (Conservatorship And Access)

In most divorces, concern about the future of the parent-child relationship can be overwhelming for the separating spouses. Many parents worry about whether the children will still live with them, either full or part time; how the visitation schedule will work; and where the kids will spend birthdays and holidays.

The fortunate thing is that custody (called conservatorship in Texas) and visitation (called possession or access) can be negotiated by the divorcing parties in the creation of a joint parenting plan, often as part of an overall marital settlement agreement. Typically, each parent retains an experienced Texas family lawyer to educate him or her about Texas law, provide advice after considering the family’s unique situation and negotiate on the client’s behalf.

When parents can agree on these issues, typically each must compromise some, but at least both have some input and control over the outcome. The agreed parenting plan still must be approved by the Texas judge assigned to the divorce proceeding.

If the parents cannot negotiate an agreement or if they do not submit a plan agreeable to the judge, matters of custody and visitation will be decided by the judge as part of the divorce proceeding.

The child’s best interest

Texas family law puts the child’s best interest as the primary concern and goal in all child custody and visitation matters. The judge will keep what is best for the child in mind as the guiding principal throughout the proceedings.

By statute, Texas public policy also prioritizes that kids get to have ongoing, regular contact with parents who act in their interest and “safe, stable, and nonviolent” living environments; and encourages parents to share parenting duties after separation or dissolution of marriage.

Consistent with the emphasis on children’s best interests, Texas laws concerning custody and visitation contain many provisions directing the judge to limit or deny parental contact and rights when that parent has a history of committing violence or abuse.

Texas terminology

Although traditional language like custody and visitation are often used, Texas law uses some unique terminology for legal concepts related to children:

• Managing conservatorship means mostly what other states call custody; it can be held jointly by both parents or solely by one; the court will divide duties and rights between joint conservators.
• Possessory conservatorship means visitation; also called access or possession.
• Primary physical residence is where the child lives most of the time; decided by the sole managing conservator or by the joint managing conservator given the power to decide by the judge.

Direction to judge

Texas law presumes that a parent should be a managing conservator unless it would “significantly impair the child’s physical health or emotional development” or there is a history of violence or abuse. Further, appointment of the parents jointly as managing conservators is presumed in the child’s best interest, rebutted by a “history of family violence.”

If one of the parents is not named a managing conservator (sole or joint), Texas statute requires the court to give that parent visitation rights by naming him or her a possessory conservator, unless each of two conditions are true:

• Visitation by that parent would not be in the child’s best interest.
• Visitation would place the child’s emotional or physical welfare in danger.

Knowledgeable legal counsel

This is only a brief introduction to this aspect of Texas family law. Seek experienced Texas legal counsel if you face these issues as a Texas parent.

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