Texas Family Law: How Child Custody is Determined

Divorce is always difficult, but when there are children involved, things become much more complex and emotional. Even in an amicable divorce, both parents usually want as much time as possible with their kids, so custody arrangements can be hard to agree on. In some cases it’s impossible. When this happens, the court will have to make these decisions for them.

Texas has few systemic rules when it comes to deciding who gets legal custody (also known as conservatorship, which refers to the right to make legal and medical decisions for the children) or physical custody (the amount of time the children spend with each parent). These are treated as separate arrangements. Courts presume that parents will be appointed joint managing conservators, which relates to their legal rights and duties, and will generally appoint one parent as the one with the exclusive right to establish their primary residence, which relates to physical custody.

Below are some of the factors that Texas judges often consider when making child custody decisions.

The Best Interests of the Child

Courts will always try to ensure that their custody decisions are in the best interests of the child. Does one parent live close to the child’s school, enabling consistency? Is the other parent battling a drug and alcohol addiction that makes frequent contact inadvisable?

Courts typically use the Texas Family Code’s standard possession order (SPO) to make visitation as consistent as possible. Under the terms of the SPO, the noncustodial parent living within 100 miles of the child has the child with him or her-

  • Every Thursday night
  • The first, third and fifth weekends of every month
  • On alternating holidays
  • One month minimum in the summer.


Texas judges understand that change can be difficult for children to cope with, and during the upheaval of divorce, it is important to maintain as much consistency as possible in their lives. Therefore, if the children have already been living with their father (for example) full-time, the court may grant him legal custody to maintain continuity.

Household Stability

If one parent has an unstable living arrangement, they are less likely to be granted primary custody. Examples include living with a succession of roommates or changing addresses several times a year.

Parental Involvement in the Children’s Lives

This factor examines the quality and extent of each parent’s interaction in the children’s lives. If both parents participated equally in their upbringing, joint physical and legal custody may be in order. If one parent was frequently absent, he or she may be granted visitation instead of primary custody.

Domestic Violence and Criminal Conduct

If one parent has a history of abusing their spouse and/or the children, they are unlikely to be granted custody and may even be allowed to visit the children only under supervised conditions. The same restrictions may apply when one parent has a criminal record, depending on the nature of the offenses.

The Child’s Wishes

When a child states that they want to live with a specific parent, the court will consider their wishes, especially if the child is over 12, although it is not the sole factor in reaching a custody decision.

Although the ideal scenario is for parents to work together to create a stable post-divorce home life for their children, this does not always happen. If you are planning to divorce in Texas and need assistance and representation during your bid for custody, contact Fraser, Wilson & Bryan, P.C. Our child custody attorneys have extensive litigation experience in the event that your custody decision must be made in court and will help you ensure that your children remain protected.