Possession and Access

Child Custody:  Possession and Access in Texas

Defining Terms:  Conservatorship under Texas Family Law

The common term “custody” denotes the right of a parent to make important decisions on behalf of their child.  Because of the sensitive nature of parental rights and the vulnerably for children that can come with divorce, those familiar with custody issues sometimes favor sensitive language.  In lieu of terms like “custody” and “visitation rights,” it is not uncommon to hear the terms “child access” and “parental involvement.” The use of these softer terms is meant to diffuse contentious discussions in which one or both parents perceive custody as a battle for power (with the child caught in the crossfire).

However, the legal term for custody in Texas is “conservatorship.”  If a parent is the “managing conservator,” he or she has the right to make decisions in relation to the child’s welfare.  If a parent has sole managing conservatorship, he or she makes all decisions related to the child’s welfare.  If parents are granted joint managing conservatorship, both have the right to make those same decisions.  If a parent has “possessory conservatorship,” he or she has the right to spend time with the child on the basis of a set schedule, but not to make decisions for the child’s welfare.

Importantly, Non-Marital Co-habitation Agreements or Domestic Partner Agreements do not protect relationships between parents and children.  For an adult to have the right to obtain custody for a child, he or she must be the child’s legal parent under Texas family law.

Decisions about Child Custody Should Be Made in the Child’s Best Interest

Decisions about possession of and access to a child should be made in the child’s best interest.  Although dividing time between parents 50/50 is not always practical, it is at least a fair way to begin a difficult conversation, which would allow one parent will often cede a portion of his or her share of time if it is in the best interest of the child.

For older children, it is important to take into account the child’s wishes.  In Texas, children aged 12 or older can express to the court their desire to live with one parent or the other.  If the judge deems the articulated desire in the best interest of the child, he or she will likely grant that desire.  If the judge believes that a child’s desire is based on motivations that are not in the child’s best interest (examples:  if the child does not want to conform to the father’s house rules or the mother has promised access to a car), the judge might not grant the child’s wish.

Agreeing on conditions of divorce, as they relate to children, is one way to help children cope with the new instability that comes from separation and divorce.  While the court will operate in the child’s best interest, parties to a divorce (including children) can be more comfortable if all are willing to take the child’s best interest into account.  Doing so ensures that some important and decisions are not made by the court.

More Information

In some cases, a parent may want to modify a court order regarding child possession and access.  See our page about Modification of Court Orders for more information.

Parents who are concerned about child custody may also want to learn about Child Support.  If substantial assets are involved in your divorce, please also see our high earner child support page.