Texas Child Custody Laws

In Texas, the Family Code presumes that the "Standard Possession Order" is in the best interest of a child age 3 or older. As such, our Texas divorce forms include a possession schedule that follows the SPO. Deviating from the SPO can be complicated and would require permission from the judge.

The Standard Possession Order dictates that the parents may have possession of the child(ren) whenever they both agreed but if they don’t agree, the non-custodial parent has the right to possession of the child(ren) at these times:

When the parents live within 100 miles of each other, the non-custodial parent has the right to possession:

• 1st, 3rd and 5th weekends of every month,
• Thursday evenings during the school year,
• alternating holidays, and
• an extended period of time (30 days) during summer vacation.

When the parents live more than 100 miles apart:

• the weekend schedule may be the same or reduced to one weekend per month,
• there is no mid-week visit,
• holidays are the same, and
• the non-custodial parent has the child a longer period of time (42 days) during summer vacation and every spring break.

Texas Family Code §153.131 presumes that appointing both parents as “joint managing conservators” is in the child’s best interests. In other words, family courts operate under the assumption that giving both parents joint custody is the best way to support the growth of a child, absent evidence of physical or psychological harm.

One parent will generally receive primary physical custody of a child, meaning they would be who the child lives with a majority of the time. The other parent – known as the noncustodial parent – would then be awarded visitation rights. In this scenario, both parents would share legal custody over the child, meaning both would have the right to make important decisions about their child’s education, healthcare, religious upbringing, and other such matters.

According to the Texas Family Code §153.002, the deciding factor in who gets custody of shared children is the “best interests of the child” standard. Courts have the final say on whether to grant joint or sole custody based on this standard, but they generally take other factors into account to determine a child’s best interests. Texas Family Code §153.134 provides the following factors, among others, to help determine a child’s best interests:

• Either parent’s ability to create a loving and healthy environment for their child
• The child’s current physical and emotional needs
• Any prior acts or omissions by either parent that suggest unfitness
• The child’s wishes (if they are the appropriate age)

State law also grants parents the right to submit a preferred parenting plan to the court for approval, but it must meet the criteria outlined in Texas Family Code §153.133 to be valid and enforceable.

While state laws regarding child custody may seem strict, that is not always the case. A judge must ultimately establish whatever arrangement they believe would serve the child’s best interests, which gives parents an opportunity to advocate for a particular arrangement that they prefer. Pursuing a favorable parenting time schedule in accordance with Texas child custody laws takes deliberation and patience. If you are ready to take this step but want to avoid as many legal fees as possible, consider using our Texas divorce forms that incorporate the Standard Possession Order.