Child Custody and Conservatorship in Texas

Short answer

People say custody. Family Code chapter 153, titled Conservatorship, Possession, and Access, uses two different ideas instead, and child support is a third, separate issue.

• Conservatorship is who holds which parental rights and duties, and which of those rights are exclusive. It covers decisions such as school, medical care, and where the child lives.
• Possession and access is the schedule. It says who has the child on which days.
• Child support is money for the child's needs. Chapter 153 keeps it separate from time with the child. Section 153.001(b) bars an order that conditions possession on paying support, and section 153.138 lets a court order one joint conservator to pay support to the other. The amounts are covered in the guide to how child support works in Texas.

Every decision on conservatorship and possession turns on the best interest of the child. Section 153.002(a) makes that the court's primary consideration.

What a conservator is

A conservator is a person the court appoints to hold rights and duties toward a child. Under section 153.005, except as section 153.004 provides, the court may appoint a sole managing conservator or joint managing conservators. If the parents are or will be separated, it must appoint at least one managing conservator. A managing conservator must be a parent, a competent adult, the Department of Family and Protective Services, or a licensed child-placing agency.

When both parents are conservators, section 153.071 requires the court to say which rights and duties each parent exercises independently, which they exercise by joint agreement, and which belong exclusively to one parent. Section 153.003 bars the court from favoring a party because of sex or marital status.

Joint managing conservatorship

Under section 153.131(b), it is a rebuttable presumption that naming both parents joint managing conservators is in the child's best interest. A finding of a history of family violence involving the parents removes that presumption.

Joint does not mean identical, and it does not mean equal time.

• No equal-time rule. Section 153.135 says joint managing conservatorship does not require equal or nearly equal periods of possession.
• Exclusive rights still exist. Section 153.134(b)(1) requires a court order for joint conservators to name which conservator alone may determine the child's primary residence. Section 153.133(a)(1) requires the same in an agreed plan, unless the plan instead keeps the residence within a specified geographic area under section 153.133(c).
• Other rights are divided. Sections 153.133(a)(4) and 153.134(b)(4) require the remaining parental rights and duties to be allocated independently, jointly, or exclusively.
• Support can still be ordered. Section 153.138 keeps the court's power to order one joint conservator to pay child support to the other.

Without an agreed plan, section 153.134(a) allows joint managing conservatorship only if it is in the child's best interest. The court weighs factors including the child's needs, whether the parents can put the child first and reach shared decisions, whether each supports the child's relationship with the other parent, whether both took part in child rearing before the suit, how close the parents live, and for a child 12 or older, the child's preference about who designates the primary residence.

The rights the code divides

Section 153.132 lists the exclusive rights of a parent appointed sole managing conservator, unless a court order limits them. They include:

• designating the child's primary residence
• consenting to medical, dental, and surgical treatment involving invasive procedures, and to psychiatric and psychological treatment
• receiving and disbursing child support for the child's benefit
• representing the child in legal action and making other decisions of substantial legal significance
• consenting to marriage and to enlistment in the armed forces
• making decisions about education and designating and enrolling the child in a school
• applying for, renewing, and keeping the child's passport

In a joint managing conservatorship, these are the kinds of rights that get allocated between the parents. When an order sets a geographic area for the primary residence, the conservator with that right must keep the residence within the area until the order is modified, under sections 153.133(a)(1)(A) and 153.134(b)(1)(A). The guide to moving with a child in Texas covers what that means for a move.

Some rights belong to every parent conservator unless a court limits them. Section 153.073 lists rights a parent conservator holds at all times, such as getting information about the child's health, education, and welfare, seeing the child's records, and consenting to emergency treatment. Section 153.074 lists rights and duties during a parent's own possession time.

Sole managing conservatorship

Subject to section 153.004, section 153.131(a) requires the court to name a parent sole managing conservator, or both parents joint managing conservators, unless it finds that appointing the parent or parents would significantly impair the child's physical health or emotional development. A sole managing conservator holds the section 153.132 rights exclusively unless the order limits them.

Family violence, abuse, and safety limits

Safety rules can override the presumptions above. Section 153.004 sets several of them.

• Under section 153.004(b), the court may not appoint joint managing conservators if credible evidence shows a history or pattern of past or present child neglect, or physical or sexual abuse by one parent against the other parent, a spouse, or a child.
• The same subsection makes it a rebuttable presumption that naming that parent sole managing conservator, or the conservator who determines the primary residence, is not in the child's best interest.
• Under section 153.004(d), the court may not allow a parent access if a history or pattern of family violence in the two years before the suit or during it is shown, or certain sexual offenses that led to the victim becoming pregnant with the parent's child. Subsection (d-1) allows an exception only if the court finds access would not endanger the child and is in the child's best interest, and enters a possession order built to protect safety, which may require supervised visits.
• Under section 153.004(e), it is a rebuttable presumption that unsupervised visitation is not in the child's best interest when credible evidence shows a history or pattern of neglect, abuse, or family violence by the parent or certain people in the parent's household.
• Section 153.005(c) requires the court to consider family violence, child abuse or neglect, and final protective orders when appointing a managing conservator.

If you or your child are in danger, the guide to how Texas protective orders work explains that separate process, and free legal help in Texas lists organizations that can help.

The other parent: possessory conservator

Naming one parent sole managing conservator does not end the other parent's role. Under section 153.191, the court must appoint a parent who is not a managing conservator as possessory conservator, unless it finds that appointment is not in the child's best interest and that the parent's possession or access would endanger the child's physical or emotional welfare. Section 153.192 gives a possessory conservator the rights and duties in Subchapter B plus what the order grants. Section 153.193 says restrictions on a parent's possession or access may not go beyond what the child's best interest requires.

Possession is a separate question

None of the labels above sets a schedule. That is the possession part of the order. Section 153.311 requires a standard possession order to let the parties have possession at times they agree to in advance, with the order's specified terms as the fallback. Section 153.252 presumes the standard possession order provides reasonable minimum possession for a possessory or joint managing conservator and is in the child's best interest. Section 153.254 has the court set an order suited to the circumstances for a child under three. The weekends, holidays, and summer periods are covered in the guide to the standard possession order.

Keeping the two parts apart helps in reading an order. A question about more time with the child is a possession question. A question about who makes a decision, such as school or medical care, is a conservatorship question.

Chapter 153 section finder

This table points to the chapter 153 sections this guide relies on. It covers the law relevant here and is not a complete copy of the chapter. Each link opens the official text.

Checklist: parts of an order to locate

When reading an existing order, these are the parts to find. This is a reading aid, not advice about any case.

• Who is appointed, and whether as sole managing, joint managing, or possessory conservator
• The rights each parent holds at all times, which section 153.073(b) requires the order to specify
• Which rights are exercised independently, jointly, or exclusively, and by whom (section 153.071)
• Who has the exclusive right to designate the primary residence, and any geographic area
• The possession schedule, and whether it is the standard possession order
• Any restrictions, supervision, or exchange terms
• The child support terms
• Any dispute resolution clause to use before going back to court (sections 153.133(b) and 153.134(b)(5))

Support, enforcement, and changes to an order all build on these terms. The Texas family law guides cover each one, including how an order is modified, and the same terms also appear in our guides to Texas law. Read the actual order alongside the relevant statute, because the order sets the terms that apply to the family.