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How is Child Custody Determined in Texas?

If you are married with children and are considering filing for divorce, or have had that decision thrust upon you by your spouse filing for a divorce, then the first concern you'll have is what will happen to your children. Will there be a dispute over who has the primary day to day care of your children? Who gets “custody” of the children?

Courts tend to analyze the relationships between parents and their children carefully, depending on the facts developed during court.  The facts that are most persuasive to your case may not be in another case.  That's why it's critical to find a saavy, experienced and knowledgeable board certified family law attorney to discuss and delve deep into the facts of your case.  Just because you were not the parent who had day to day care of the children in their younger years, doesn't mean that you will not be considered the parent to now have the primary day to day care of your kids.

Child Custody in Legal Terms

“Custody” is not the legal term a judge uses to determine who has the day-to-day care and decision making of your children; it is a term that is often used by non-lawyers to designate who has that right. In a divorce decree, a judge will determine who is the primary “managing conservator” by granting to each parent certain specific rights and duties that each parent will have the right to exercise after divorce.  Those rights can include, and often do, address which parent has the right to the following:

  1. ​to establish the primary domicile/residence of the children;

  2. to consent to medical, dental and surgical treatment involving invasive treatment;

  3. to consent to psychiatric and psychological treatment;

  4. to represent the children in legal action;

  5. to make decisions concerning your children’s education.

Although in most cases, both parents will have the right to consent to routine and emergency medical care during their period of parenting time with the children, as well as having the right to consult with and obtain records from medical providers, mental health providers and educators of the children at all times, the issue as to who has the rights set forth above can be emotionally explosive in a divorce, and can create havoc for your children. Therefore, before you venture into a contested case over who should have the exclusive privilege to exercise one or all of these rights, you should know in advance what factors a court considers in making these decisions.  Knowing this early will potentially save you thousands of dollars in legal fees and more importantly spare you and your children the emotional collateral damage caused by such litigation.

Factors in Determining Custody

The decision as to which parent shall have the exclusive right to exercise these tasks usually occurs very early in the divorce process, either during the initial mediation or contested hearing for temporary orders, if mediation is unsuccessful. Once that decision is made, it is set forth in what is called a Temporary Order.  These temporary orders usually remain in effect during the divorce process, and are seldom modified during that time frame.  Thus, it is imperative that you understand early on how these decisions are made, so you can prepare your case properly to obtain the outcome you believe is best for your children.

The overriding principle a court uses in making such decisions is “the best interest of the child”.  Since that concept is really vague, and provides little guidance in the decision-making process, appellate case law has developed a list of various evidentiary factors which guides a court in determining what is in the best interest of a child.

As you can imagine, the list is exhaustive and is driven by the specific facts of your case, and how creative you and your lawyer can be in framing the evidence to the issues before the court.  Some of these factors can carry greater weight in your case, than in others, depending on the severity of the factors presented.

One Parent has a History of Drug or Alcohol Abuse

If one parent has a history of drug or alcohol abuse, you will probably emphasize that issue over all others, as it alone may be enough to persuade the court without focusing on other factors.  However, if drugs or alcohol abuse do not exist in your case, there are certain other basic factors that should almost always be addressed and presented to the court to assist in its decision making.  Remember, the Judge is a stranger, that has not lived in your home, and is unfamiliar with the environment in which your children are being raised.  It is your attorney’s and your job to educate the judge and paint a vivid picture of what’s been occurring. Some of the factors you should focus on are as follows.

Who has Physical Possession of the Children?

The most obvious factor is who has had primary physical possession of the children during the day.  Is it a stay-at-home parent, while the other has worked?  If you look deeper into what is occurring, physical possession alone may not be enough.  Although one parent may have fallen into the role of being the stay-at-home parent there may be other factors to consider. Is there evidence of neglect? Does that stay-at-home parent often hire a nanny, babysitter or someone else to do the physical and emotional care of the children? Is that parent preferring to spend time with a new boyfriend or girlfriend, rather than with the children?


However, physical possession in the past may not be enough.  For example, after divorce, will the previous stay-at-home parent have to work to support their new single parent household?  If so, what will those work hours then be?  What arrangements will the parent have in place to care for the children during the day, while that parent works? Which parent has a social or family network nearby to assist in picking up a sick child from school, or taking one to a doctor?  It truly does take a village to raise a child, and the parent who can demonstrate a tightly known village supporting that parent has an advantage.


It is also important to develop evidence beyond who simply has the physical possession of the children.  For example, are there special needs your children have, or that they need now that are going unrecognized, or even worse, ignored? What is the reason for such lack of recognition or neglect of these needs?

Does one parent recognize potential issues of the children, and then act in a reasonable and timely manner to address those needs? Is one parent, perhaps due to education or training, more knowledgeable about a certain issue than the other, and therefore, better able to address that issue?  Has one parent historically failed to educate themselves on certain issues, and left the research and decision making to the other parent?

Which parent knows the names of the doctors, nurses, dentists, school teachers and counselors?  Although one may know the name of the pediatrician, often it is not the pediatrician who the parent speaks to most often in making appointments and following through on matters.  Who actually makes these appointments?  Who follows up on these matters, and takes them to the various appointments?


Regarding education, how are your children progressing in school?  Are they having learning difficulties?  If so, who is addressing those needs?  Which parent oversees homework and school projects?  Who communicates with the teachers, whether by phone, email or in person?  Does that parent then follow up on recommendations made?


Children need social interaction to properly develop. Which parent makes friends with other parents, so that they can become familiar with who is your child’s friend, and then can schedule play dates for the children with those friends? Who researches and signs the children up for extracurricular activities such as sports and scouts. Which parent then follows through on getting the child to the activities on time and prepared?    Does one show their support for the child by attending the activities?  Children thrive on being encouraged by active parents.


As children grow older, so do the responsibilities of the parents.  If your child is a teenager, which parent knows your child’s friends?  Where they live?  And equally important, which parent has bothered to get to know the parents of your teenager’s friends? You don’t have to be friends with the parents, but you should at least have had some conversation with those parents, especially if your child is spending a lot of time over there. What are the values of those other parents, and the rules they have in place for their teenager?  Do their rules align with those of your household?


Electronics, whether it is internet gaming, social media sites or cell phones, can be a parent’s nightmare.  Children seldom want limits place on such devices, and certainly do not want a parent invading their privacy.  However, it is important to remember to treat the use of these devices as privileges that expand as the child matures.  Which parent has tracking devices on your teenagers’ phone and car?   Are there boundaries or limits set for the use of the car? What are those limits, and why were they put in place? Are the limits reasonable? Is one parent undermining the other parent’s efforts to be a responsible parent? All of these inquiries reveal the thinking processes of a parent, their level of parenting and whether they are functioning as a parent, or simply a friend of their child.


Who does the child turn to when they are hurt, and why?  Most often, when a child is young and needs comfort, they will seek comfort form their emotional or psychological parent—the one the child feels soothes them best.  Professionals call this the “emotional, psychological parent.”

However, as a child ages, the “emotional parent” may not be the better parent, but simply be the parent that the child can manipulate better, or that wants to be the child’s friend rather than its parent—that is willing to “buy” the child’s affection.

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