When parents cannot agree on child custody following a separation or divorce, they are able to apply to court for an order. Each case is examined by a judge on a case-by-case basis in order to make a final custody order. In Texas, the closest thing to full custody is sole managing conservatorship and possessory conservatorship.
How to Get Full Custody in Texas
The family court in Texas addresses four main issues in child custody cases: conservatorship, rights and duties, parenting time/visitation and child support. Under Texas family law, the best interests of the child must always be the court's primary concern when determining each of these issues.
If you are wondering how to get sole custody of a child in Texas, this requires a termination of the relationship between the child and the other parent. However, this is a very serious request that the court does not take lightly, requiring a great deal of evidence and proof. An involuntary termination of parental rights is extremely lengthy and expensive, with no guaranteed outcome.
Termination of Parental Rights
Only in rare cases will a court in Texas entirely terminate the rights of one parent. This means one parent has the right to make all the decisions for the child (i.e., legal custody, known as conservatorship in Texas), and the right to all the parenting time (i.e., physical custody, known as possession in Texas) to the complete exclusion of the other parent.
To terminate one parent's rights, the court must have clear and convincing evidence of one of the grounds for termination under the Texas Family Code, and believe that termination of the parent-child relationship is in the best interests of the child.
For example, the court may terminate the parent-child relationship if the parent has voluntarily left the child alone or in the possession of another person who is not the child's parent, and expressed an intention not to return. If the parent has abandoned the child, knowingly placed the child in dangerous conditions or knowingly engaged in criminal conduct that has resulted in a conviction and imprisonment, these are other possible grounds for termination of the parent-child relationship.
Conservatorship in Texas
What most people think of as custody is called conservatorship in Texas. The two types of conservators are managing conservator and possessory conservator.
Managing conservators may be sole managing conservators or joint managing conservators. Unless it is clearly in the child's best interests to terminate a parent-child relationship, the court will presume that the parents should be named joint managing conservators. This means they share the rights and duties of parenting the child.
A sole managing conservator is granted exclusive right to make decisions for the child. If you want to know how to get sole managing conservatorship in Texas, be aware that this happens only when the court decides that a joint managing conservatorship is not in the best interests of the child. For example, sole managing conservatorship may be granted to one parent when the other parent has committed domestic violence against a member of the family, has engaged in behavior that puts the child in danger, or has substance abuse problems.
A possessory conservator is the person designated by the court as having a right to possession of a child under certain conditions, and authorized during periods of possession to exercise certain rights of a parent. Parents may or may not have equal periods of possession.
Parental Rights and Duties
In Texas, every parent, whether a sole managing, joint managing or possessory conservator, has certain rights and duties regarding a child. These include the right to receive information from any other conservator of the child about the child's health, education and welfare, the right of access to medical, dental, psychological and educational records of the child, the right to attend school activities, the right to be an emergency contact person on the child's records, and the right to consent to medical, dental and surgical treatment for the child during an emergency.
Duties include informing the other conservator of the child in a timely manner of any significant information about the child's health, education or welfare and supporting the child by providing clothing, food, shelter and medical and dental care.
If you are the sole managing conservator of a child in Texas, you also have certain exclusive rights, such as the right to designate the primary residence of the child, the right to consent to psychiatric and psychological treatment, and the right to consent to marriage or enlistment in the U.S. armed forces.
Filing for Child Custody
You must follow a certain protocol to file a child custody order in Texas. This starts with filing a Suit Affecting the Parent-Child Relationship form with the clerk of court in the county in which your child lives. This form tells the court and the other parent the orders you want made in respect to custody and visitation.
The filing fee varies by county, so ask the clerk of court the amount, and make the payment at the time of filing. You can file in person or online via Texas E-File. The other parent then has to be officially notified that the petition has been filed. You cannot serve the other parent yourself, so it will be done in person by a sheriff, constable or private process server instructed by the court. The other parent does not have to sign anything, but the server will complete a Return of Service form that states when and where the other parent was served and send this to you or to the court.
You must attach a copy of the Acknowledgment of Paternity form for each child to your filing. This is the easiest and fastest way to establish paternity and is signed by you and the other parent to identify the child's biological father as her legal father. To get this form, complete an Acknowledgment of Paternity Inquiry Request (available to download from the Texas Department of State Health Services website) and send it to the Acknowledgment of Paternity Registry of the Texas Vital Statistics Unit, or contact the Vital Statistics Unit at (512) 776-7111.
A father can request genetic (DNA) testing to establish paternity if this is in question.
You also have to complete an Order In Suit Affecting the Parent-Child Relationship form, which you will ask the judge to sign when your case is completed. This form comes with a Standard Possession Schedule, which you may complete and attach to the filing if it meets your needs. Otherwise, you and your lawyer can draft your own schedule.
After you file your petition, the other parent has the opportunity to file an answer, counter petition or denial with the court. Other documents may be required to complete before the case proceeds to mediation and/or trial. Depending on the complexities of the case and the case made by the other parent, you may have to gather certain documents, such as medical records, employment and financial records, and any applicable police reports.
If you are asking for an order for child custody as part of your divorce proceedings, include information about your children and what you want in terms of custody on your initial divorce petition. Custody and visitation are then dealt with during the divorce proceedings.
Texas Standard Possession Schedule
When deciding whether a child should spend time with each parent, the court will often recommend the Texas Standard Possession Schedule as being in the child's best interests. However, parents are allowed to agree to something different.
The Texas Standard Possession Schedule puts forward several visitation provisions, which vary depending on the distance between the homes of the parents.
For parents who live within 100 miles from each other, it proposes that the noncustodial parent has visitation the first, third and fifth weekends every month, Thursday evenings every week, alternating holidays (such as Thanksgiving every other year) and an extended (30-day) visitation period during the summer vacation.
For parents who live more than 100 miles from each other, there is no midweek visitation, and the noncustodial parent may get the same or reduced weekend visitation, alternating holidays and every spring break, and a 42-day period during the summer vacation.
Best Interests of the Child
When making any decision that concerns a child, the family court always prioritizes what is in the best interests of the child.
Many factors are considered by the court, including the child's desires, the child's emotional and physical needs (both now and in the future), the parenting abilities of the individuals seeking custody, the programs available to help the parents promote the child's best interests, the stability of the home and any acts or omissions of the parent which may demonstrate the suitability of the existing parent-child relationship.
Financial Support of the Child
Under the Texas Family Code, child support is presumed to be in the best interests of the child. In Texas, as of 2018, child support is based on a percentage of the paying (noncustodial) parent’s net income up to the first $8,550 per month of income. Generally, net income is worked out as monthly gross income minus federal income taxes, union dues, Medicare and Social Security taxes and any insurance premiums paid for children.
For one child, the monthly child support amount percentage is around 20 percent of the net income. For two children, it is 25 percent, for three children, it is 30 percent and for four children, 35 percent. If the parent paying child support has no net resources, the court assumes an income equal to minimum wage for a 40-hour week. The court has the legal authority to issue a child support order even if the paying parent is not present in court.
Child support generally continues until the child reaches the age of 18 or later if the child is still in high school. If the noncustodial parent violates a child support order, enforcement options include jail time, fine and garnishment (deducting money from the parent's wages). A parent may be placed in jail for up to six months for failure to pay child support. Under Texas law, the reason for placing a noncustodial parent in jail is contempt of court, which means not following a court order. The parent may also be fined up to $500 for each violation and have to pay attorney’s fees and court costs.
Child support and visitation rights are separate legal issues. This means a parent has the right to see his child even if he is not paying child support. However, it also means that he must continue to pay child support even if he is not seeing his child. Child support can be used at the discretion of the custodial parent, and the noncustodial parent has no say on how the money is spent.