Custody in Texas.
The starting point the law actually sets, what the judge has to weigh, and the deadlines that catch people out.
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This is the single most misread rule in Texas family law, so read it slowly. Tex. Fam. Code sec. 153.131(b): 'It is a rebuttable presumption that the appointment of the parents of a child as JOINT MANAGING CONSERVATORS is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.' That presumption is about the LABEL and the bundle of decision-making rights. It is not about time, and the Family Code says so in its own section: sec. 153.135 – 'Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child to each of the joint conservators.' On top of that, even in a joint managing conservatorship the court MUST pick a winner on residence: sec. 153.134(b)(1) requires the court to 'designate the conservator who has the exclusive right to determine the primary residence of the child' and either establish a geographic area within which that residence must be maintained, or specify that there is none. And the schedule has its own, separate presumption: sec. 153.252 – 'there is a rebuttable presumption that the standard possession order in Subchapter F: (1) provides reasonable minimum possession of a child for a parent named as a possessory conservator or joint managing conservator; and (2) is in the best interest of the child.' The standard possession order is not 50/50. So a Texas parent can be a joint managing conservator, be presumed into that status by statute, and still have the child living primarily with the other parent on a standard possession schedule. Sec. 153.131(a) separately presumes that a parent, rather than a non-parent, should be appointed, unless the appointment would significantly impair the child's physical health or emotional development.
Use the state’s own words
Texas does not use 'custody' or 'visitation' at all. A custody case is a 'suit affecting the parent-child relationship' (a SAPCR). Decision-making authority is 'conservatorship,' and a parent is a 'sole managing conservator,' one of two 'joint managing conservators,' or a 'possessory conservator' (Tex. Fam. Code secs. 153.005, 153.006, 153.131, 153.191). Time with the child is 'possession of and access to the child,' set by a 'possession order,' and the default schedule is the 'standard possession order' (Subchapters D, E and F of ch. 153). The single most important phrase in a Texas order is 'the exclusive right to designate the primary residence of the child.'
The short version4 points · tap one to jump to it
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How Texas decides
The short version4 points · tap one to jump to it
In this subject 4
Decisions against where the child lives
Texas does not split legal from physical custody. It does two different things. First, it allocates specific enumerated rights and duties among the parents (secs. 153.071-153.076 for all conservator parents, sec. 153.132 for a sole managing conservator, sec. 153.192 for a possessory conservator). Sec. 153.071: 'If both parents are appointed as conservators of the child, the court shall specify the rights and duties of a parent that are to be exercised' – independently, jointly, or exclusively by one parent. The rights that matter most are the exclusive right to designate the child's primary residence, and the rights to consent to medical, psychiatric and surgical treatment, to make education decisions, and to receive child support. Second, and entirely separately, it sets possession and access – the schedule. A parent can be a joint managing conservator and still have only standard possession. Sec. 153.074 gives each parent, unless limited, the rights and duties of a conservator during their own periods of possession.
What the judge must weigh
- There is no general statutory checklist. Sec. 153.002 states the standard; Texas courts apply a list of non-statutory factors developed by the Texas Supreme Court in Holley v. Adams.
- The statutory factors that DO exist, for court-ordered joint managing conservatorship – sec. 153.134(a): (1) whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators; (2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest; (3) whether each parent can encourage and accept a positive relationship between the child and the other parent; (4) whether both parents participated in child rearing before the suit was filed; (5) the geographical proximity of the parents' residences; (6) if the child is 12 years of age or older, the child's preference regarding who should have the exclusive right to designate the child's primary residence; and (7) any other relevant factor.
- Sec. 153.003: the court considers the parties' qualifications 'without regard to their marital status or to the sex of the party or the child.'
- Sec. 153.001(a) states the public policy: assure that children will have frequent and continuing contact with parents who have shown the ability to act in the child's best interest; provide a safe, stable, and nonviolent environment; and encourage parents to share in the rights and duties of raising their child after separation or divorce. Sec. 153.001(b) forbids conditioning possession or access on the payment of child support.
- For a child under three – sec. 153.254(a): the court renders an order appropriate under the circumstances and considers all relevant factors.
What the child wants
The 12-year rule is real but it is not what most people think. Tex. Fam. Code sec. 153.009(a): 'In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court SHALL interview in chambers a child 12 years of age or older and MAY interview in chambers a child under 12 years of age to determine the child's wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child's primary residence.' What that gives a child of 12: a guaranteed private conversation with the judge, if someone asks for it. What it does NOT give the child: the power to choose. Sec. 153.009(c) says so directly – 'Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.' The judge may not interview the child in chambers in a jury trial on an issue a party is entitled to have the jury decide (sec. 153.009(d)), and a record of the interview must be made for a child 12 or older on motion or the court's own motion (sec. 153.009(f)). Texas repealed the old provision that let a child 12 or older file a written choice of managing conservator. The child's preference also matters in two other places: sec. 153.134(a)(6) makes it a factor for court-ordered joint managing conservatorship, and sec. 156.101(a)(2) makes a 12-year-old's stated preference an independent ground for modification.
Where there has been violence or abuse
Tex. Fam. Code sec. 153.004, and it is a bar rather than a presumption in the most serious cases. Sec. 153.004(a): in deciding sole or joint managing conservatorship, the court shall consider evidence of the intentional use of abusive physical force, or of sexual abuse, by a party against the party's spouse, a parent of the child, or anyone under 18, committed within the two years before filing or during the case. Sec. 153.004(b): 'The court MAY NOT appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child' – and the same evidence creates a rebuttable presumption that appointing that parent as sole managing conservator, or as the conservator with the exclusive right to determine the child's primary residence, is not in the child's best interest. Note that this is also what removes the joint-managing-conservator presumption under sec. 153.131(b). Sec. 153.004(d): the court may not allow a parent access to the child where a preponderance of the evidence shows a history or pattern of family violence during the two years before filing or during the case – subject to sec. 153.004(d-1), which allows access only if the court finds it would not endanger the child and is in the child's best interest AND renders a protective possession order, which may require continuously supervised access, exchanges in a protective setting, abstention from alcohol or controlled substances for 12 hours before and during access, and completion of a battering intervention and prevention program. Sec. 153.004(e): a rebuttable presumption against unsupervised visitation where there is credible evidence of a history or pattern of child neglect or abuse or family violence by that parent or by anyone living in or given unsupervised access in that parent's household. Sec. 153.004(f) directs the court to consider whether a Chapter 85 protective order was rendered in the relevant period.
The paperwork and the people
The parenting plan
Not required in every case. Sec. 153.007(a): 'To promote the amicable settlement of disputes between the parties to a suit, the parties MAY enter into a written agreed parenting plan containing provisions for conservatorship and possession of the child and for modification of the parenting plan, including variations from the standard possession order.' If the parents want to be appointed joint managing conservators by agreement, sec. 153.133(a) tells them exactly what the agreed plan must contain: it must designate the conservator with the exclusive right to designate the child's primary residence and either establish the geographic area for that residence or specify that there is none; specify each parent's rights and duties regarding physical care, support and education; include provisions to minimize disruption of the child's education, daily routine and friendships; allocate all remaining parental rights and duties under ch. 151 independently, jointly or exclusively; be voluntarily and knowingly made and not repudiated; and be in the child's best interest. If no agreed plan is filed, sec. 153.134 governs and the court decides. There is no single mandatory statewide form; the Texas Supreme Court and the Office of Court Administration publish approved SAPCR forms for cases without lawyers.
Mediation
Not by statute – but the consequences of mediating in Texas are unusually severe, so read this before you sign anything. Sec. 153.0071(c): 'On the written agreement of the parties or on the court's own motion, the court MAY refer a suit affecting the parent-child relationship to mediation.' Many Texas counties require mediation before a contested final hearing by local rule. Sec. 153.0071(d)-(e): a mediated settlement agreement is BINDING if it states in a prominently displayed statement in boldfaced type, capital letters or underlining that it is not subject to revocation, is signed by each party, and is signed by any attorney present when it is signed – and if it meets those requirements 'a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.' You cannot change your mind the next morning. Sec. 153.0071(e-1) is the narrow escape: a court may decline to enter judgment if it finds a party was a victim of family violence and that circumstance impaired the party's ability to make decisions, or the agreement would let a registered sex offender or someone with a history or pattern of physical or sexual abuse live with or have unsupervised access to the child – AND that the agreement is not in the child's best interest. Domestic violence exemption from mediation itself: sec. 153.0071(f) – a party may file a written objection to referral to mediation at any time before the final mediation order, on the basis of family violence committed by another party against the objecting party or the child. Once the objection is filed the case may not be referred to mediation unless, on request, a hearing is held and the court finds a preponderance of the evidence does not support the objection. If it is still referred, the court must order safety measures, and 'the order shall provide that the parties not be required to have face-to-face contact and that the parties be placed in separate rooms during mediation.'
If the court appoints someone to look into it
Tex. Fam. Code ch. 107, Subchapter D (secs. 107.101-107.115). Sec. 107.103(a): 'The court, after notice and hearing or on agreement of the parties, may order the preparation of a child custody evaluation.' The order must name the evaluator, state the purpose, list the basic elements required by sec. 107.109(c) and any additional elements, and identify the specific issues or questions to be addressed. Evaluators must meet the qualifications in sec. 107.104 and the specialized training requirements in sec. 107.105, and sec. 107.109(a) bars an evaluator from offering an opinion on conservatorship or possession unless every required element has been completed or a failure is satisfactorily explained. Who pays – sec. 107.115: 'If the court orders a child custody evaluation to be conducted, the court shall award the person appointed as the child custody evaluator a reasonable fee for the preparation of the child custody evaluation that shall be imposed in the form of a money judgment and paid directly to the person.' Separately, sec. 107.021 lets the court appoint an amicus attorney, an attorney ad litem for the child, or a guardian ad litem, and sec. 107.023 entitles those appointees to reasonable and necessary fees, court costs and expenses 'in an amount set by the court and ordered to be paid by one or more parties to the suit.'
Moving away
What you must do before you move
Texas has no relocation statute – no notice period, no mileage trigger, no separate petition for permission. Instead the court builds the limit into the order at the start. Sec. 153.134(b)(1) (and sec. 153.133(a)(1) for agreed plans) requires the court to designate the conservator with the exclusive right to determine the child's primary residence and to either '(A) establish, until modified by further order, a geographic area within which the conservator shall maintain the child's primary residence; or (B) specify that the conservator may determine the child's primary residence without regard to geographic location.' In practice that geographic restriction is usually a county and its contiguous counties, or a school district. To move outside it you must modify the order: sec. 156.101(a) requires a material and substantial change in the circumstances of the child, a conservator, or another affected party since the order (or since the signing of the mediated or collaborative settlement agreement the order is based on), plus best interest. Sec. 156.102 adds a gate for the first year: if you file to change who has the exclusive right to designate the primary residence within one year of the order or of the settlement agreement, you must attach an affidavit alleging, with supporting facts, that the child's present environment may endanger physical health or significantly impair emotional development; or that the person with that right is the one seeking or consenting to the change and it is in the child's best interest; or that person voluntarily relinquished primary care and possession for at least six months and the change is in the child's best interest. 'The court shall deny the relief sought and refuse to schedule a hearing' unless the affidavit's facts are adequate. Sec. 156.103 lets the court reallocate increased travel expenses caused by a change of residence.
Later on
Changing the order
Tex. Fam. Code sec. 156.101(a): the court may modify conservatorship, its terms and conditions, or possession and access if modification is in the child's best interest AND one of three things is true: (1) the circumstances of the child, a conservator, or another affected party 'have materially and substantially changed' since the earlier of the date the order was rendered or the date the mediated or collaborative law settlement agreement it is based on was signed; (2) the child is at least 12 and has told the judge in chambers under sec. 153.009 who the child prefers to have the exclusive right to designate the child's primary residence; or (3) the conservator with that exclusive right has voluntarily relinquished primary care and possession of the child to another person for at least six months. Ground (3) does not apply to a temporary relinquishment during military deployment or mobilization. Sec. 156.102 adds the one-year affidavit gate described under relocation above – within a year of the order, no hearing at all unless the affidavit states adequate facts.
If you were never married
A father must be a legal parent first. Tex. Fam. Code sec. 160.202 promises equality of outcome – 'A child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other' – but sec. 160.201(b) sets the gate. The father-child relationship is established only by an unrebutted presumption of paternity under sec. 160.204, an effective acknowledgment of paternity under Subchapter D that has not been rescinded or successfully challenged, an adjudication of paternity, adoption, or consent to assisted reproduction by his wife. Sec. 160.204's presumptions all run through marriage – married to the mother when the child was born, or the child born before the 301st day after the marriage ended, or an attempted marriage before the birth. So an unmarried father who did not sign an Acknowledgment of Paternity at the hospital is not yet a 'parent' for conservatorship purposes and must establish paternity, usually in the same suit in which he asks for conservatorship and possession. Sec. 160.203: once established, the parent-child relationship applies for all purposes.
Two things about Texas that consistently cost parents. First, 'joint managing conservator' is not joint custody the way people picture it. Sec. 153.131(b) presumes you will both be named joint managing conservators, and sec. 153.135 says in so many words that this 'does not require the award of equal or nearly equal periods of physical possession.' Meanwhile sec. 153.134(b)(1) forces the judge to hand ONE of you the exclusive right to determine the child's primary residence, and sec. 153.252 presumes the standard possession order – which is not half the time – is the right schedule. If you are agreeing to be joint managing conservators without also negotiating the primary-residence right, the geographic restriction and the possession schedule, you have not actually negotiated anything. Second, the 12-year rule does not let your child pick. Sec. 153.009 entitles a child of 12 to talk to the judge in chambers if someone requests it, and sec. 153.009(c) says the interview 'does not diminish the discretion of the court.' Telling a twelve-year-old they get to decide sets them up for a painful surprise. And one practical warning: if you go to mediation and sign a mediated settlement agreement that meets sec. 153.0071(d), you are bound to it – there is no cooling-off period.
What we could not confirm
- Texas has no statutory list of general best-interest factors. The list judges actually use comes from a Texas Supreme Court decision (Holley v. Adams), which we could not verify on an official state website, so we have not reproduced it here – ask a Texas family lawyer for the current Holley factors. We also could not confirm the name or number of a mandatory statewide parenting plan form; the Texas Supreme Court and the Office of Court Administration publish approved SAPCR forms for people without lawyers, and TexasLawHelp.org hosts them. Whether mediation is required before your final hearing is set by your county's local rules, which we could not verify county by county.
- 1 official page we tried to read refused automated access. We did not try to get around that, so some detail above was read from a different official source — a published court opinion quoting the statute, or the court’s own forms and instructions.
Compare all fifty states
Where 50/50 really is the default, and the twenty-six states where nothing is presumed.
And the money side
How Texas calculates child support, and the overnight number that changes it.
The rest of what we have written about Texas. Every figure is quoted from Texas’s own statute or its courts’ own published schedule, and carries the date we last checked it.