In cases of divorce, the court of jurisdiction for the divorce proceedings also determines child custody arrangements. Under the common statutory provision, if the spouses have children together while married, the parents have joint guardianship over that child and the parental rights are equal. Each parent has an equal right to the custody of the child when they separate.
When determining the home in which to place the child, the court strives to reach a decision in “the best interests of the child.” A decision in “the best interests of the child” requires considering the wishes of the child’s parents, the wishes of the child, and the child’s relationship with each of the parents, siblings, other persons who may substantially impact the child’s best interests, the child’s comfort in his home, school, and community, and the mental and physical health of the involved individuals. The factors the court will likely consider in Texas are as follows:
The children’s age.
The children’s physical condition.
The children’s physical needs now and in the future.
The children’s physical and mental vulnerabilities.
The children’s emotional needs now and in the future.
The emotional danger to the children now and in the past, now and in the future.
The children’s mental ability.
The children’s mental vulnerabilities.
The children’s desires.
The history of instability in a parent’s home.
The history of time spent away from the parent.
The magnitude, frequency and circumstances of physical harm to the children.
The magnitude, frequency and circumstances of emotional abuse to the children.
Fears of the children of living with the parent.
The anticipated results of psychological or psychiatric evaluations of the parent.
The results of developmental evaluations of the parent.
The history of abusive conduct by the parent.
The history of assaultive conduct by the parent.
The history of abusive conduct by individuals involved in the parent’s past and present living environment.
The willingness of the parent to voluntarily provide support for the children.
The parenting skills and abilities of the parent, including the concern regarding her ability to provide adequate health care, adequate nutritional care, adequate hygiene, adequate needs, appropriate care, appropriate discipline, appropriate guidance, appropriate supervision, a safe and secure physical environment, protection from repeated violence, and understanding of the children’s needs and capabilities.
The existence and availability of an adequate social support system.
Plans for the children.
Acts of the parent which may indicate that the existing parent/child relationship is not a proper one.
The excuses for the acts of the party.
Omissions of the parent which may indicate that the existing parent/child relationship is not a proper one.
Any excuses for the omissions of the parent.
All facts and circumstances that bear directly or indirectly on the children, including, but not limited to, present or future physical, mental, emotional, educational, social, disciplinary, and moral welfare, well being, stability, and developmental needs.
The Texas Family Code does not use the term “custody” in describing a parent’s legal relationship with a child, but instead employs the more legalistic term “conservatorship.” This terminology implies less of a focus on children as inanimate property items of the parents and instead focuses more on the rights, responsibilities, benefits, and burdens of the parent-child relationship: that parents are there to “conserve and protect” a child, not merely possess a child like a table or chair. People might inadvertently use the terms “custody” in discussions because the term is used so widely in the press, media, and common parlance, but the legal difference between “custody” and “conservatorship” should remain clear no matter what terms people might casually use or misuse in conversation. There is no such legal thing as “full custody,” “sole custody,” “joint custody,” “primary custody,” or any other type of “custody” over children under Texas law.
It is the public policy of Texas to ensure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; to provide a safe, stable, and non violent environment for the child; and to encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage. Current Texas law presumes that appointment of a child’s parents as joint managing conservators is in the child’s best interest, unless there is a finding of a history of family violence involving the parents.
If both parents are appointed joint managing conservators of the child, either by agreement between the parties or by court order, the court shall specify the rights and duties of a parent that are to be exercised by each parent independently, by the joint agreement of the parents, and exclusively by one parent. Each parent appointed conservator has at all times, as specified by court order, the right to receive information from the other parent concerning the health, education, and welfare of the child and the right to confer with the other parent to the fullest extent possible before making decisions concerning the health, education, and welfare of the child. Joint managing conservatorship is defined as the sharing of the rights and duties of a parent by two parties, ordinarily the parents, even if the exclusive right to make certain decisions may be awarded to one party. The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect or of physical or sexual abuse by one parent directed against the other parent, a spouse, or a child.