How Texas family court judges make custody determinations

If you are involved in a divorce or separation, or another family-related legal proceeding where children are involved, you will need to determine both the amount of time that each parent will spend with the child and the level of input that each parent will have into decisions that concern the child's upbringing. In most states, this discussion would center around the issues of physical custody and legal custody. Texas, however, has provided its own legal terms, and refers to the amount of time spent with the child as "possession" or "access" and the ability to make decisions for the child as "conservatorship."

No matter what terminology is used, a decision must be made about each parent's opportunity to co-parent the children. If you and the child's other parent or custodian can agree, you have the right to establish your own conservatorship and access arrangements. Should you be unable to settle upon your own schedule, though, a Texas family court judge will make the decision for you.

The parameters of Texas custody law

Texas laws governing conservatorship, possession and access are set forth in Title 5, Chapter 153 of the Texas Family Code. Though there are many different provisions in that chapter, the overriding theme is that any custody or visitation decisions must be made in the best interests of the children involved. Though there isn't a definition given for what the legal standard of "best interests of the child" entails, numerous precedential family court cases over the years have enumerated factors commonly considered by judges making conservatorship and possession decisions. These include:

  • Age and health of the child(ren)
  • Age and health of the parents (or a non-parent conservator involved in the matter)
  • Special needs of any involved parties
  • Stability of home environment of the child
  • Child's relationship with siblings or other family members (and how that would be impacted by the judge's decision)
  • Preference of the child, if he or she is old enough to express a preference
  • Any history of domestic violence in the home
  • Amount of time each parent could spend with the child
  • Educational needs of the child
  • Level of involvement of each parent in the child's life
  • Other factors the court deems relevant

Making your case

Though there is guidance provided by statute and prior case law, judges are still given wide discretion when making conservatorship and possession determinations. For that reason, it is important to make a clear, concise and persuasive argument that your desires concerning access to your children be fulfilled. Statistically, having a skilled Texas family law attorney at your side puts you in a better position and makes it more likely that your argument will sway the judge. To learn more about your legal rights and options for conservatorship, possession or other family law matters, speak with a lawyer in your area.