The Texas Family Code and judges interpreting the facts of every child custody case, apply the “best interest of the child” standards when deciding where children will live, and how co-parenting situations will take place among the parties and children. The Family Code states that, “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.[i]” When the family court reviews the facts of each child custody case, the courts follow Texas public policy to, “assure that the children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child.[ii]” Depending on the details of each family situation, the application of the best interest factors can be straight forward and can be decided by agreement of the parties, or require an evidentiary hearing to determine the conservatorship and possession and access to the child.
What are conservatorship and possession and access in Texas family law?
Conservatorship is the term used in the Texas family code, in place of the term “custody,” and for most intents and purposes the two terms have similar meaning and application. There are two types of conservatorship, and individuals are determined as being managing conservators and possessory conservators. A managing conservator has all the rights and duties any parent would have, to make decisions for the management of the child’s life. A possessory conservator has access rights, otherwise known as visitation, with the child, and in some cases possession and access is limited to supervised visits. In some cases both parents have custodial rights, and in Texas family law this is referred to as joint managing conservatorship.[iii]
What are the best interests of the child factors in Texas family law?
The leading Texas Supreme Court case,
Holley v. Adams
, is the most frequently cited court decision that outlines the factors a family court considers in determining the best interests of a child. While this is one set of guidelines used in custody determinations, the court may consider these and other factors in a variety of combinations depending on facts and circumstances:
1.Desires of the child, as to where they want to live;
Children age 12 or older may have their preference be considered as a factor when the court decides with whom the child will live, and who will have the exclusive right to designate that child’s primary residence.[v]
2.Emotional and physical needs of a child, now and in the future;
The court may consider the development of the child and how they are likely to benefit from being placed with either parent as a conservator. A child’s emotional and physical needs should ideally be satisfied to as near as possible to the child’s state prior to divorce.
3.Emotional and physical dangers to a child, now and in the future;
Danger to a child can be short-term and potentially ongoing, and the court must weigh evidence supporting concerns of either physical or emotionally dangerous conditions surrounding parents seeking conservatorship and possession and access to the child.
4.Parenting abilities of the parent or individual seeking custody;
If one of the parents has consistently taken care of the child’s daily physical and emotional needs, and the other parent would not likely perform the same parenting duties to the extent to which the child is accustom, the court will weigh those abilities accordingly. Work and travel schedules can be a factor in assessing which parent has the best parenting abilities.
5.Programs to help custodial parents foster the best interest of the child;
Being an active part of the community where a child lives is important to their sense of self and healthy development. If a child actively participates in local civic, church and sports programs, a court may weigh the evidence of the child’s activities in evaluating their best interests, to decide conservatorship and possession and access.
6.Plans for the child by the parents, individuals or agency seeking custody;
When custody and visitation issues are contested, the parties meet with mediators, court-appointed attorneys, and parenting facilitators, to try to work out a parenting plan in the child’s best interests. In this process, which could go to hearing and trial in family court, parents identify and write their proposed plans to manage and provide for the mental, emotional and physical needs of the child.
7.Stability in the home and proposed placement location;
Generally, if a child is well adjusted in the home where the family resided before the court, and the parent to continue residing in that location is the better parent to be the conservator with sole possession and access, the court will favor a decision that least disrupts the child’s daily life. If however, the current situation is detrimental, and one of the parents seeking custody is moving to a much better living situation with plenty of benefits to the child, the court may consider the evidence of such claims.
8.Acts or omissions by a parent indicating an improper parent-child relationship; and
Abuse and neglect of a child, in any discernible format, is certainly considered by the court, as it would help predict circumstances in the best interest of the child. The failure of a parent to meet a child’s mental, emotional and physical needs, on a temporary or other basis, can be the basis upon which the court determines conservatorship.
9.Excuses for the acts or omissions of a parent seeking custody.
There may be temporary conditions a court considers when evaluating options for the placement and custody of a child. If the parent, most likely to be the better conservator, has a temporary condition or issue affecting their ability to carry out parental duties, the court may consider evidence of the temporary nature of such a condition, and information relative to the likelihood of such a condition to reoccur.
What are the alternate dispute resolution procedures to keep child custody decisions out of the courtroom?
While the family court judges in Texas county courts have the jurisdiction and authority to decide issues of conservatorship and possession and access to a child, there is a policy preference favoring alternative dispute resolution among parents and individuals seeking custody. Alternative dispute resolution procedures in custody cases can include binding arbitration and mediation, hopefully leading to a written binding arbitration or mediated settlement agreement.[vi]
Dispute resolution in high-conflict custody cases may involve the court’s appointment of a parenting coordinator, who works with the parties to identify issues, reduce misunderstandings, clarify priorities and explore problem-solving opportunities.[vii] In high-conflict cases, a court may also appoint a parenting facilitator who meets informally with the parents or parties to the cause, and makes observations similar to that which a parenting coordinator would, and then writes and furnishes the court with their parenting facilitator report, containing recommendations the court may use in determining conservatorship and possession and access.[viii]
In the event alternative dispute resolution is not effective in determining the conservatorship and possession and access of a child, the case moves forward in the traditional family law court process. Hearings and trials may be necessary to evaluated and weigh the evidence to determine the outcome in the best interests of a child.
Dallas and Collin County Board Certified
[ix] divorce and family law attorney,
, along with their team at
Scroggins Law Group
can advise and represent parents working through amicable or high-conflict divorce cases involving children and their best interests.
At Scroggins Law Group, our Dallas and Collin County divorce attorneys have more than over 24 years of collective experience with family law cases. When you retain our firm, you can trust that your case is in the hands of a highly skilled, dedicated professional. we understand the unique challenges of a high value divorce case, and more importantly, have the knowledge and experience you need on your side. Call us today to learn more about Texas divorce and family law: (214) 469-3100
*Mark L. Scroggins is *board-certified in family law by the Texas Board of Legal Specialization. Unless otherwise noted, other attorneys are not *board-certified.
**Super Lawyers (a Thomson Reuters service, awarded to Mark Scroggins 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021)
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