Custodial Parent in Texas: Definition and Laws
By Claire Gillespie
Updated September 17, 2018
Every American state has its own laws concerning child custody and visitation, but they don't all use the same legal terms. In Texas, custody is known as conservatorship, and possession and access are the terms used to talk about visitation. Ultimately, they all mean the same thing: Where the child lives; how much he spends with each parent; and what rights and responsibilities each parent has concerning the child.
Definition of Custodial Parent
A custodial parent is the primary parent with whom the child lives. This may follow a court order giving primary legal or physical custody to that parent; be the result of an informal agreement between the parents; or be due to the fact that there is only one parent in the child's life. On the other hand, a noncustodial parent does not have primary custody of the child, but that parent still has certain rights to the child.
Custodial Parent in Texas
Under Texas law, the term conservatorship is used instead of custody. Basically, conservatorship covers all the rights and duties of a parent, such as the right to make decisions for the child regarding education and healthcare. A custodial parent is called a managing conservator, and a noncustodial parent is called a possessory conservator.
There are different ways to determine conservatorship. For example, one parent may be the sole managing conservator, meaning he makes all decisions regarding the child, or both parents may be joint managing conservators, meaning they make all decisions jointly. Under Texas law, the presumption is that both parents should be named joint managing conservators, so if a parent wishes to be sole managing conservator, it is up to her to prove that joint managing conservatorship is not in the best interest of the child.
Custodial Parent Laws in Texas
Custodial parent responsibilities in Texas are covered by the Texas Family Code. Chapter 153 of the code relates to the appointment of conservators and the granting of rights of custody and access to a child. Each subchapter deals with a different aspect of child custody. For example, subchapter F covers the standard possession order, and subchapter K covers the parenting plan.
Rights of Conservatorship
A sole managing conservator of a child generally has:
- the right to choose the child's primary residence.
- the right to consent to medical, dental and surgical treatment.
- the right to consent to psychiatric and psychological treatment.
- the right to make decisions about the child's education.
- the right to consent to the child's marriage.
- the right to consent to the child's enlistment in the Armed Forces of the United States.
- the right to receive periodic child support payments and hold or distribute those funds for the child's benefit.
- the right to represent the child in legal actions and to make legal decisions affecting the child.
- the right to the child's services and/or earnings.
- the right to act as agent of the child in relation to the child’s estate when action is required by the state, the United States or a foreign government if no guardian of the child’s estate or a guardian or attorney ad litem has been appointed.
The court retains the power to limit any of these rights, depending on the best interest of the child.
In most cases, every parent, whether sole, joint or possessory conservator has:
- the right to receive information from the other conservator of the child about the health, education and welfare of the child.
- the right to be involved, as much as possible, in the decision-making process concerning the health, education and welfare of the child.
- the right to access medical, dental, psychological and educational records of the child.
- the right to consult with the child's physician, dentist or psychologist.
- the right to consult with school officials concerning the child's welfare and educational status, including school activities.
- the right to attend school activities.
- the right to be named on the child's records as an emergency contact.
- the right to consent to medical, dental and surgical treatment during an emergency involving an immediate danger to the health and safety of the child.
- the right to manage the estate of the child to the extent that the estate has been formed by the parent or the parent's family.
In most cases, every parent also has:
- the duty to inform the other conservator of the child in a timely manner of significant information concerning the health, education and welfare of the child.
- the duty to inform the other conservator of the child when the conservator parent resides with for at least thirty days, marries or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or who is currently charged with an offense for which, if convicted, the person would be required to register under that chapter.
Possession and Access in Texas
In Texas, visitation rights are known as possession and access. This refers to when a parent has actual physical custody of the child or when he visits the child. Two possession and access schedules exist under Texas law, dictating the amount of time each parent spends with the child: standard and extended standard. Parents can follow these schedules if they wish, but they can also agree that different schedules will suit their needs. Alternatively, the court can order a different possession and access schedule based on the best interest of the child. If one parent can prove that visitation with the other parent may harm the child's emotional or physical well-being, the court may order supervised visitation.
Best Interest of the Child
If the parents cannot mutually agree on a conservatorship arrangement or a possession and access schedule, and the matter goes to court, the court takes into account a long list of factors to make its decision. These factors are based on what is in the best interest of the child and include: the child's physical and emotional needs; the stability of each parent's home; future plans for the child; how willing each parent is to cooperate with the other; which parent historically has been the child's primary caregiver; the child's relationships with siblings and other family members; and the overall fitness of each parent to provide the child with adequate care. If the child is 12 or older, her preference may be taken into account, but this cannot be the only factor determining which parent she lives with.
There should be no gender bias when it comes to deciding custody and visitation arrangements for a child. This means the court should not favor a mother or a father, but make custody and visitation decisions solely based on the best interest of the child.
Child Support in Texas
Generally, the managing conservator is the parent who receives child support. However, if parents are joint managing conservators, the court determines whether either parent has to pay child support based on the best interest of the child. If a parent is ordered to pay child support, but does not fulfill his financial obligations, this does not give the other parent the right to refuse visitation with the child. Under Texas law, no parent or court can deny visitation based solely on nonpayment of child support.
Filing a Custody Case in Texas
If you cannot come to an agreement with your child's other parent, and you need the court's help in establishing the custodial parent in Texas, file a petition to start a custody case. The only requirement is that the child has lived in Texas for at least the previous six months or that Texas was the child’s home state, and the child has been gone less than six months. To start the process, complete a Petition in Suit Affecting the Parent-Child Relationship form, which is available online at TexasLawHelp.org or from the district clerk's office in the county where you intend to file your case. At the time of filing, you generally must pay a filing fee to the court, which varies by county. Ask the district clerk's office what fee is due.
Texas Parenting Plans
Every case that goes to court involving children in Texas requires a parenting plan. Upon approval by the court, this forms part of the final order. The plan must set out all rights and duties of a parent or a person acting as a parent in relation to the child and the periods of possession of and access to the child. It also provides for child support and promotes the development of a close and continuing relationship between each parent and the child.
Depending on the circumstances of the case, the court may appoint a parenting coordinator or a parenting facilitator to assist with the parenting plan and to help reduce conflict between the parents. Parenting coordinators and parenting facilitators have similar roles, but the main difference is that a parenting coordinator's work is confidential, meaning that he cannot testify about what happens during sessions with families. On the other hand, parenting facilitators can be asked to testify about their work with families, because they do not have a duty of confidentiality. Parties may also participate in mediation, either voluntarily or as directed by the court, to help them reach an agreement. This often avoids the need for a full trial to determine custody and visitation arrangements.
Modifying Custody in Texas
An existing conservatorship order may be modified in Texas by the court that made the initial custody decision if it is in the best interest of the child and both parents agree to the modification. In the absence of an agreement, modification may be considered by the court if the child is 12 years or older and tells the court he wants to live with the other parent. The court may modify an existing custody order if a parent can show that there has been a significant change in circumstances since the original order. This may be shown in a number of ways.
In order to get additional custody and/or visitation time with your child, you must prove to the court that you are an integral part of the child's life. For example, you can show the court that you exercise regular visitation, that you regularly take your child to extra-curricular activities, that you care for your child on a daily basis, and that you are stable and competent to live with your child for longer periods of time.
Grandparents' Rights in Texas
Under Texas law, grandparents do not have automatic rights to custody and/or visitation. However, if they meet certain statutory requirements, a grandparent can file a petition with the court for custody or visitation. In Texas, a court can authorize grandparent visitation of a grandchild if doing so is in the child's best interest and one of these circumstances applies:
- The parents are divorced.
- The parent abused or neglected the child.
- The parent has been incarcerated, found incompetent or died.
- A court order has terminated the parent-child relationship.
- The child has lived with the grandparent for at least six months.
A grandparent in Texas may seek conservatorship of a grandchild if the child lives with her.
- The Attorney General of Texas: Handbook for Non-Custodial Parents
- Texas Constitution and Statutes: Family Code Title 5 Subtitle B Chapter 153 Conservatorship, Possession, and Access
- TexasLawHelp.org: Petition in Suit Affecting the Parent-Child Relationship
- TexasLawHelp.org: FAQs: Filing a Parent SAPCR (Custody) Case
- The Attorney General of Texas: Grandparents' Page
Claire Gillespie writes about health, science, home and parenting. She has bylines on SELF, SheKnows, The Washington Post, Vice and more.