When parents get divorced, one of their top concerns is their children. And you might be surprised to know that custody issues can be one of the most contentious parts of a divorce. So if you are a parent considering divorce, you might be wondering, “How can I get custody of the kids?” But your attorney may ask you, “What type of custody do you want?” Because the truth is, custody in Texas is a little complicated. So today’s blog will explain the different types of custody in Texas—and perhaps help you in your own divorce.
Overview of the Different Types of Custody in Texas
In Texas, “custody” is divided into two parts: legal and physical.
A parent who has legal custody has the right to be involved in making important decisions for the children. This would include decisions about their education, medical and psychological care, religion, place of residence, and more.
Physical custody refers to the children’s primary residence—in other words, who they live with.
Legal and physical custody can be further divided into joint or sole custody. Thus, joint legal custody means both parents have equal decision-making authority.
Shared Physical Custody means the children have two residences. They will spend at least 35 percent of their time living with the other parent.
How Does the Court Decide on the Different Kinds of Custody in Texas?
In making a custody decision, Texas judges do not give a preference to the father or mother. Instead, the courts focus on what is the best interests of the children. The Texas Family Code Section 153.002 states, “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”
This is important to remember if you hire a family law attorney. The court is interested in the type of custody you want, but it is much more concerned about what type of custody is best for your children. Read our recent blog about a 50/50 custody arrangement in Texas.
Other Kinds of Custody in Texas
In some cases, the court also may decide to order split physical custody. This means that some children live with one parent, while others live with the second parent.
The court allows this arrangement for different reasons. For example, there may be a significant age gap among the kids.
Also, if the children are at least 12 years of age, they have the option to state their custody preference. Thus, one child may want to live with the father and another child with the mother.
There is yet another kind of custody. The court also may allow the children child to have only one residence, while the parents take turns living there. However, this arrangement is unusual.
What is the Difference Between Custody and Conservatorship?
The different kinds of custody can be confusing. This is because, in Texas, courts and attorneys do not use this term. Instead, they refer to conservatorship.
If the court gives both parents an equal say in making decisions, they have a Joint Managing Conservatorship (JMC). Whenever possible, the court prefers this arrangement.
But as noted, in some divorces, the court may give decision-making authority to only one parent. The court designates this person as the Sole Managing Conservator (SMC). The SMC has both decision-making authority and physical possession of the children.
Reasons to Have a Sole Managing Conservator
Courts choose this kind of custody for different reasons. For example, one parent may have a history of neglect, violence, or drug abuse. The court also may make this ruling if there is great conflict between the spouses—for example, if they have dramatically different religious beliefs.
Be aware that, even if you and your spouse are named joint managing conservators, you probably will not have equal physical custody of the children. Also, if the court names one parent sole managing conservator, the other parent likely will be required to pay child support. Read our recent blog about child support lawyers for fathers.
Factors the Court Looks at When Considering the Different Types of Custody
Most courts take custody decisions very seriously. For example, if the parents prefer a JMC, they want to make sure the parents are sincere about working together. And if a parent wants to be named SMC, they will want to make sure that parent is not trying to “punish” the other parent.
When a judge is considering the different types of custody here are some things he or she considers:
- How willing are the parents to cooperate with each other?
- Which parent is best able to provide the children with a stable home life?
- Does one parent have a difficult work schedule—for example, long work long hours, or an extensive travel?
- How close together do the two parents live?
- Overall, how fit is each person to be a parent?
- What type of relationship do the parents have with the children? For example, a parent and child may not be on speaking terms.
The court also may make its decision based on the stated preferences of the children. However, this is only if the kids are at least 12 years of age. And as we have noted, if one parent has a history of neglect or abuse, that person is very likely to have limited access to the children.
How Does Visitation Work in Texas?
Just as Texas law has a different term for custody, it also has a different term for visitation. The court refers to possession and access. Courts use guidelines provided in the Texas Family Code to create a visitation schedule, which is called a standard possession order.
Parents can make the judge’s job easier by agreeing in advance on a proposed visitation schedule. The judge may accept this proposal or make changes to it.
The court prefers to grant each parent possession and access. However, if the court determines that one of the two parents may endanger the physical or emotional well-being of the child, the court may deny that person possession and access. A parent also can request to deny the other parent access. Read our recent blog about how to get sole custody in Texas.
Attorneys Who are Experts in the Different Kinds of Custody in Texas
Custody cases can be complicated. They also can be emotional—after all, you want the best for your children. Our Fort Worth, Texas, divorce attorneys are very experienced in these cases. We will fight for your rights while making sure to treat you and your children with compassion and respect. If you are facing a custody case, don’t risk making a mistake you may regret for years to come. Contact us today at 817-335-9600.