For parents, some of the fiercest fought divorce battles are conducted in the custody arena, where fear of the unknown and good, old-fashioned paternal instinct has the power to send even the best of parents over the edge. Luckily, having a firm understanding of how the process works can often combat at least some of this stress.
In Texas, there are two main categories of custodial power: legal and physical. Each of these carries its own weight and responsibilities, and can be assigned either solely to one parent, or jointly, to both.
When establishing joint or sole custody in your case, the court will consider all facts and outcomes based on the child’s best interest. Here’s how that works in Texas.
Custodial Powers: Legal and Physical
It’s not just property that needs to be divided upon divorce—it’s children, too. Or rather, the rights inherently associated with parenthood, since you can’t actually split a baby two ways. (Sorry, Solomon!) That being said, these paternal rights have been grouped into two, overall categories:
- Legal Custody; and,
- Physical Custody.
1. Legal Custody
The right to make decisions on behalf of a child is called legal custody. This encompasses a wide expanse of powers, including the right to make decisions about medical treatments, religious exposure, and education choices (to name a few).
In “legal speak,” this branch of custody is often known as “conservatorship.”
2. Physical Custody
The second category, physical custody, is a parent’s right to have access to their child. This refers not only to where the will child live, but also to visitation, encompassing the inherent rights of a parent to see, have contact with, and engage in meaningful interactions with their child.
The legal terminology often used for physical custody, is “possession and access.”
Establishing Joint or Sole Custody
Now that we’ve outlined the basic parental rights, it’s time to talk about how Texas courts partition them, upon divorce.
To illustrate this concept, let’s pretend that legal and physical custody are each a bundle of sticks. In one hand, you have your legal sticks, the ones that bestow decision-making authority and power over a child. In the other, your physical sticks, representing quality, in-person contact with your child, as well as the responsibilities that come with it.
While married, both stick bundles belong to the parents, equally, and sticks from either category can be utilized, distributed, and passed between the spouses, at the couple’s own discretion. Which is super great, because kids are exhausting, and for bedraggled parents, the power to freely exchange and pass responsibilities between each other is a lifesaver. However, it also means that if the couple ever gets divorced, these shared rights must be divided—not unlike marital property.
A judge can do this one of two ways:
- Sole Custody—giving the whole bundle of sticks in one or both categories to a single parent; or,
- Joint Custody—dividing the stick bundles between the parents (either equally, or disproportionately).
You Probably Won’t Get “Full” Custody
Most of the time when clients ask if they can get “full custody” what they’re really asking for is, “Can I get sole legal custody over my child.” When it comes to making decisions about their child, they want to be the parent holding all the straws in the proverbial, legal stick bundle (thank you very much).
Unfortunately, this is a rather unreasonable request. In most situations—whether in regards to legal or physical custody—judges aren’t likely to give one parent full control over either bundle.
Best Interest of the Child Standard
The main reason courts aren’t likely to grant sole custody requests is because when making decisions about minors, all facts are considered under the scrutinizing lens of the best interest of the child. And this principle assumes a child’s best interest is served by having a loving, healthy relationship with both parents—something that’s hard to do, if one half of the duo doesn’t even have access.
As a result, legal custody is most often divided exactly equal between parents, giving them the same amount of clout to make important decisions about their child. This is easily done, since you don’t need to be in the same room, or even the same state, to share decision-making authority. However, what happens when it comes to physical time?
Admittedly, time is a lot harder to divvy out in equal shares. Still, courts do their best, and there are very few scenarios where one parent will be bequeathed with the full lot of physical custody sticks.
Establishing Joint or Sole Custody: Physical Time
With so many outside influences vying for the attention of parents and child, courts are usually forced to divide the bundle of physical custody sticks (aka: time) unequally between spouses. Typically, this means assigning one parent to be the child’s primary residence (the “custodial parent”), while the other receives ample visitation rights (the “non-custodial parent”).
Ultimately, the decision of who gets to hold the majority of the sticks—thereby becoming the child’s primary caregiver—will come down to an analysis of a number of individualized factors.
Factors to Consider
The history of Texas case law offers judges a wide range of facts to consider, when establishing which spouse will be the custodial parent. This list includes:
- Age and health of parents;
- Home environment;
- The child’s relationship with parents and siblings;
- Work schedules (including the amount of time each parent can devote to their child);
- Education and childcare needs;
- The special needs of any children;
- Any history of domestic violence;
- The child’s preference; as well as,
- Any other factors a judge considers relevant.
It’s not impossible for one parent to get sole custody, just unlikely. Because again: best interest matters most, and best interest says that both parents should have rights. Ergo, while the physical division of time might be as skewed as one parent getting nine sticks, while the other retains only one (such as supervised visitation), both parents are left in play as much as possible.
The only times the court will completely terminate parental rights is if it is in the child’s best interest. Usually this requires a high threat of harm from the parent, such as abuse, severe neglect, or abandonment.
As far as child preferences go, Texas law states that if a parent requests an interview for a child over twelve, judges are required to comply. If the child is under twelve, however, the interview is optional.
That being said, courts are aware that children are often really poor judges of what’s best for them. So while these wishes can be helpful in assessing family dynamics, preferences are unlikely to make or break any custody arrangement.
In general, the closer the child is to eighteen, the more weight their preference will likely be given.
Custody Attorneys in Texas
While the process of establishing joint or sole custody can be stressful, it’s important to remember that custody’s underlying goal isn’t to sever either parent/child relationship. Rather, it’s to secure the best possible future for the child you both love.
If you are wondering how Texas’s custody laws might affect your divorce, we want to hear from you. Call us today at (972) 436-8000, or schedule a consultation online, and let us help you fight for the best interest of your child.