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Child Custody in Texas

What is Child Custody in Texas

Child custody refers to a parent's or guardian's legal right to look after their child and make decisions for them after a divorce in Texas, including education, welfare, religious, and health decisions. Typically, child custody cases arise after divorce or separation, and courts could grant either or both parents custody. Nevertheless, a court could give child custody to a third party. In Texas, child custody is called conservatorship, and a parent with custody is called a conservator. A Texas court hearing a custody case usually decides the terms of conservatorship, but if both parents agree on a custody plan, a court could approve their written agreement.

Child Custody Laws in Texas

Texas' current child custody laws are contained in the Texas Family Code of the Texas Statutes. Before 1968, courts in different US states, including Texas, could decide on all child custody cases within their jurisdictions. This was because the US Supreme Court did not initially specify whether the US Constitution's Full Faith and Credit clause applied to child custody decrees. Therefore, a court in one state could modify another state's child custody order. This legal gap allowed parents to abduct their children to different states after initial custody decisions to file for new custody rulings in their favor. Nevertheless, such sudden relocations disrupted children's lives, and judicial resources were wasted because courts in different states heard the same child custody cases.

The Uniform Law Commission (ULC) established the 1968 Uniform Child Custody Jurisdiction Act (UCCJA), which governed the modification of child custody rulings. This law prevented courts from modifying initial custody orders from other states and required them to enforce the orders. The UCCJA lessened parents' legal allowance to abduct their children, but it did not eliminate the possibility of several states having concurrent jurisdiction over a child custody case. Therefore, there were conflicting custody orders by different state courts, causing uncertainties for children and parents. Also, the UCCJA did not provide enforcement procedures for its requirements. Consequently, the ULC approved the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in 1997 to replace the 1968 UCCJA. It permitted only one state to have jurisdiction over a child custody case and provided enforcement procedures for child custody orders. Nevertheless, the UCCJEA could only become effective in a state after adoption by its legislature.

The Texas Uniform Child Custody Jurisdiction and Enforcement Act was adopted on September 1, 1999, by the 76th legislature. Under this Act:

  • An open child custody case in another state is not subject to a different hearing or modification in Texas even if a party is present in the state
  • A party subject to a child custody ruling in another state is not immune from their court's decision if they are in Texas
  • A Texas court may communicate with a court in a different state about a child custody decision without informing the party involved
  • A Texas court may exercise temporary emergency jurisdiction on a child custody case open in another state if the child is abandoned in Texas or is at risk of physical abuse

Types of Child Custody in Texas

There are two types of child custody (conservatorship) recognized in the Texas Statutes, namely:

  • Sole managing conservatorship: In this custody type, a court gives a sole managing conservator (a parent or nonparent) the exclusive authority to make decisions concerning a child. If one parent is named sole conservator, the other parent could be named possessory conservator. A possessory conservator is someone with visitation rights.
  • Joint managing conservatorship: This is when a court gives both parents (joint managing conservators) the right to make decisions about their child.

Section 153.003 of the Texas Family Code requires courts hearing child custody cases to consider each party's qualification for conservatorship without regard to their gender or marital status. Nevertheless, per Section 153.004 of the Texas Family Code, a court must consider a party's domestic violence and sexual abuse history before granting them sole or joint managing conservatorship. If there is evidence of a party's involvement in physical or sexual abuse of a child, the court may not grant them conservatorship.

How to File for Child Custody in Texas

A Texas child custody suit begins when a person files a petition with a Circuit Court Clerk in the county the child resides, using a Suit Affecting the Parent-Child Relationship (SAPCR) form. In line with Section 102.009 of the Texas Family Code, the child's parent and the Texas Department of Family and Protective Services (DFPS) are entitled to receive legal notice of a custody petition. Per Section 102.003 of the Texas Family Code, a child custody petition may be filed by:

  • The child, through a court-appointed representative
  • The child's parent
  • The child's legal guardian
  • The DFPS or any other government entity
  • A licensed child-placing agency
  • A third party (excluding foster parents), if the child lived with them for up to six months within the 90 days preceding the petition
  • A male alleging to be a child's father who is filing for custody in line with the provisions of Chapter 160 of the Texas Family Code
  • An adult with written consent for child adoption per the provisions of Chapter 162 of the Texas Family Code
  • A person with parental rights according to Chapter 161 of the Texas Family Code
  • A person with whom the child's parent or guardian has resided for up to six months within the 90 days preceding the petition if the parent or guardian is deceased
  • A foster parent appointed by the DFPS if the child has lived with them for up to 12 months within the 90 days preceding the petition
  • The child's third-degree relative, as defined in Chapter 573 of the Texas Family Code, if the child's parents are deceased
  • An adult named as a prospective adoptive parent of an unborn child by a pregnant woman in line with the provisions of Section 102.0035 of the Texas Family Code
  • A genetic parent of an unborn child carried by a gestational parent in line with the provisions of Section 160.754 of the Texas Family Code

Section 105.001 of the Texas Family Code stipulates that a court may issue a temporary child custody order before its final ruling. According to the provisions of Section 102.008 of the Texas Family Code, a Circuit Court hearing a child custody case has continuing jurisdiction and could modify its judgment.

How to Get Full Custody of a Child in Texas Without Going to Court

A parent or adult filing for conservatorship in Texas can get full custody of their child without going to court by reaching an agreement with the other parent. The agreement must be approved by a Circuit Court Judge in the county where the child resides. Per Section 153.007 of the Texas Family Code, parents are encouraged to enter written child conservatorship and possession agreements. Nevertheless, such agreements are not enforceable as contracts without a judge's approval. The agreement must contain a dispute resolution plan that both parties must use before enforcing the agreement through litigation. A court may request both parties to revise their custody plan if it is not in the child's best interest. In line with Section 153.007(d) of the Texas Family Code, if a revised custody plan is not satisfactory, the court may issue a different plan it considers most favorable for the child.

How Long Does a Child Custody Case Take in Texas?

The length of time before a court issues a final order in a Texas child custody proceeding varies depending on the complexity of the case. If both parties reach an agreement outside court and a judge approves it, the case could be concluded within days. Nevertheless, if both parties cannot reach a satisfactory custody agreement, each would need to present evidence in court to support a possible ruling in their favor. The court would decide what is best for the child based on the evidence presented. In such cases, child custody could take months.

Child Custody Evaluations in Texas

A child custody evaluation is a process whereby a judge appoints a third-party entity (custody evaluator) to investigate issues concerning a child custody case and present their findings and custody recommendations. Custody evaluators are usually professionals such as psychologists, social workers, therapists, or counselors who consider the family factors that could affect children's psychological well-being. According to the provisions of Section 107.103 of the Texas Family Code, a Circuit Court hearing a child custody case may order a custody evaluator to examine any issue about a suit.

Choosing a Child Custody Lawyer in Texas

There are different options available for persons seeking legal assistance for child custody cases in Texas. A person could hire a private attorney or use the services of a legal clinic, depending on their financial capability and the complexity of their case. Private attorneys offer more specialized services in complicated child custody cases, but they cost more than legal clinics. The Texas State Law Library provides a list of legal assistance organizations for persons seeking free and low-cost legal services for child custody cases.

Do I Have the Right to Know Where My Child is During Visitation?

Per Section 153 of the Texas Family Code, if a party gets visitation (possession) rights in a custody ruling, a court would specify the terms and conditions of visitation. A parent has the right to know where their child is during visitation to ensure adherence to the court's order.