The Love DuCote Law Firm LLC Legal Blog

The framework of child custody in a Texas divorce

When a Sugarland couple contemplates ending their marriage, one of their principal concerns is who will be given the power to make legal and other decisions on behalf of the children. Another chief concern is whether one parent be awarded custody of the children and will the non-custodial parent have the right to visit and spend time with the children on a regular basis. Divorcing parents should be aware that Texas courts often require divorcing couples to take a mandatory parenting class before the divorce will be granted.

Two basic principles guide the courts in deciding issues of child custody. The first is serving the “best interests of the child.” The second is a clear preference for joint managing conservators, that is, shared decision making by the parents after the divorce is final. Most Texas courts prefer joint custody arrangements to enable both parents to spend significant time in the company of their children. (“Conservatorship” is the term used by the legislature to define a parent’s right to have a meaningful relationship with each child.

The best interests of the child comprise a variety of factors, including the existing and potential home environments, each parent’s ability to serve as the child’s caretaker, whether the parents are capable of cooperating in making decisions regarding the child’s education, health care, financial security, each parent’s employment and financial condition and the child’s preference if the child is at least 12 years old. In making custody decisions, Texas courts consider, in addition to the list of factors set forth above, the child’s emotional and physical needs, the presence of any physical danger to the child, each ex-spouse’s ability to act as a caring and responsible parent and any acts or omission that may be evidence of parental unfitness.

Custody comes two flavors in Texas. Legal custody means the right to tend to the child’s welfare on a day-to-day basis, regardless of where the child resides. Legal custody includes the child’s education, religious practices, health care and the child’s activities. Physical custody refers to the place where the child lives. Under Texas law, the parent with whom the child resides is called the “possessory conservator.” A court can award one parent both kinds of custody or split the custodial rights between the ex-spouses. As noted earlier, courts in Texas prefer joint conservatorships.

Anyone contemplating a divorce may wish to seek advice from a competent divorce attorney who can provide explanations of the various procedure and how they may affect the couple’s situation.

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