Texas Divorce Laws

Who Gets the Kids After a Texas Divorce?

By:
Sophia Merton
Updated
September 16, 2022

When your marriage is ending and you have children, there’s probably one primary question looming in your mind. Who gets the kids after a Texas divorce?

You and your spouse can come to an agreement about child custody during a Texas divorce. If you disagree on who should get custody, though, a judge will decide for you.

Texas courts focus on supporting the best interest of the child and begin with the presumption that shared custody is best for the kids. There are a number of factors considered when determining child custody, though, and the answer will reflect the unique circumstances of each divorce.

Let’s take a look at everything you need to know about child custody and divorce in Texas.

Who Gets the Kids After a Texas Divorce?

If you and your spouse agree on who should have primary custody of the children, the two of you are free to come up with an agreement that works for the whole family as a part of your settlement agreement. This means that the two of you can decide where your children will live and the details regarding when the kids will spend time with the noncustodial parent.

little girl blowing bubbles after texas divorce custody order

You and your spouse can reach your own parenting agreement as a part of a divorce. If you can't agree, a court will decide for you.

Child custody is a common contentious issue in divorce. You can try to reach an agreement about this matter through processes such as mediation.

If you are unable to reach an agreement regarding child custody, the court will decide how custody is divided. The norm is for Texas courts to award joint custody when it is possible. This means that both parents get to spend some time with the children. However, there are some cases where the court will award sole custody to one parent over the other.

Factors That Influence Who Gets the Kids in a Texas Divorce

If you and your spouse aren’t able to reach your own agreement regarding child custody, the court will decide for you. There are a number of factors they will take into account when deciding who should have custody of the children.

Again, Texas courts are primarily concerned with what is best for the children. They begin with the presumption that a standard possession schedule or an expanded standard possession schedule– where custody is shared between both parents– is in the kids’ best interest.

It’s worth noting that there are certain factors that are not taken into account by a judge when determining child custody. These include a parent’s gender, race, religion, or marital status.

The Child’s Age

One thing the court will look at when deciding who gets the kids after a Texas divorce is the age of the child.

little kid smelling flowers after custody order in texas divorce

When a child is under the age of three, the court approaches the matter of child custody a bit differently because of the unique needs of young children.

It is common for courts to award primary custody to the parent that has been acting as the primary caretaker for young children between the ages of 0 and 3. That is unless the parent poses a threat to the safety of the child.

The Physical and Emotional Needs of the Child

Different children have different needs, and courts will want to make sure that the proposed custodial parent is able to provide for those needs now and over time. Ideally, custodial parents will need to be able to house, clothe, and feed their children, offer a loving and safe living environment, and help furnish opportunities for the social and intellectual development of the child.

The goal is for children to be able to grow up physically, emotionally, and socially healthy thanks to having the support and comfort they need in their home.

The Child’s Preference

Children don’t have the right in Texas to decide who they are going to live with after their parents get a divorce. However, the court might consider the preference of a child when making their determination.

This will only factor into the decision if the court finds that the children are old enough and mature enough to make such a difficult determination. If a child is able to plainly express what they want, a judge will usually give this some weight.

A child might want to spend equal time in both households or maybe they want to live with one parent more than the other. They also might have an opinion about whether they live with their siblings.

The Roles and Responsibilities of Each Parent

Courts will also look at what roles and responsibilities each spouse has been taking on historically. They will try and determine which parent has been acting like the primary parent– the one that most often drops the kids off at school, takes them to the doctor, helps them with their homework, etc.

mother with son looking at map after custody battle in texas

The court will take into account the roles and responsibilities each parent had been performing in the past when determining primary custody.

Again, parents can negotiate the duties and responsibilities assigned to each parent post-divorce during mediation if necessary. If no agreement is reached, though, parental history will have a big impact on the judge’s decision.

Each Parent’s Health and Finances

Another factor that courts will take into account is the health and financial circumstances of each parent. It’s important that children have a stable living situation, and a parent with poor health or unstable finances might not be able to provide that for their children.

Parental Cooperation

Sometimes, one parent will try and undermine the relationship between the other parent and their children. They might constantly criticize the other parent in front of the kids to try and sour their relationship. When this type of behavior occurs, a court is less likely to award custody rights to the problematic parent.

However, if a parent shows that they are willing to cooperate with the other parent in terms of co-parenting and other issues, their case regarding custody will be stronger.

The Child’s Relationship With Each Parent

How involved has each parent been in the child’s life both in the past and now that divorce is pending?

Courts will try to maintain an equal split if that is generally how parental involvement played out historically.

Continuity of the Child’s Experience

Divorce can be really hard on kids, and courts often try to keep as much continuity in the life of children as possible. This means that they want to keep as many elements of the kids’ lives the same as they can through their decision.

mother with two kids after texas divorce custody order

Texas law recognizes that divorce can be very disruptive in the lives of children, and therefore aim to create as much continuity as possible in the child's experience.

For example, if a kid has been living with one of their parents full time, a court might give primary custody to this parent. Similarly, if one parent is going to keep the family home in the divorce, the court can end up ruling in favor of this parent in terms of primary custody so that the children can keep living in the same house.e

The goal is to let kids continue sleeping in the same bed, living in the same neighborhood, going to the same school, and maintaining their normal schedule.

Evidence of Additional Best Interest

Texas courts will also look into whether there are any problematic issues with either parent that makes them less suited to the role of having primary custody. There are a number of factors that can lead a court to believe a specific parent having custody wouldn’t be in the best interest of the child, including:

  • Drug use
  • Alcoholism
  • Domestic violence
  • An unstable environment or household

The physical and emotional safety of children is paramount in a divorce, so a court will want to make sure that they are not put in physical or emotional danger. The court will dig into whether there is any history of domestic violence or other issues in the family. Living in a house that is free from emotional trauma and threats of physical harm is a major consideration when working to serve the best interests of a child.

In fact, a court cannot appoint a parent as a conservator (either sole or joint) if there is credible evidence that they have a history or pattern of:

  • Past or present child neglect
  • Physical or sexual abuse against a spouse, the other parent, or a child

Understanding Child Custody in a Texas Divorce

There are a number of instances where a court order might be made regarding child custody, one of which is in the case of a divorce where the parents don’t reach their own agreement. Other examples of court orders that involve custody are:

  • Paternity Establishment Order
  • Order in Suit Affecting Parent-Child Relationship (SAPCR)
  • Emergency Order involving the Department of Family and Protective Service (“CPS”)

Some important terms you will want to know when it comes to Texas child custody include:

  • Conservatorship: The part of a court order that outlines the rights and duties of each parent and where a child will live (also referred to as “custody”)
  • Possession order: The part of a final decree that outlines the specific times and dates the non-custodial parent will visit with the child
  • Custodial parent: Also known as the managing conservator, primary joint managing conservator, or the primary conservator, this is the parent that has the right to decide about the child’s primary residence
  • Non-custodial parent: Also known as the possessory conservator, this is the parent that doesn’t have the right to choose the child’s primary residence

What Is Joint Custody?

In most custody orders, both parents will be named Joint Managing Conservators (JMCs). Texas courts order that both parents share custody unless there is a compelling reason not to order this, such as a history of family violence of one parent.

Usually, a JMC will require that decision-making about a child’s medical treatment, education, and similar issues is shared between the parents.

A child’s time is not necessarily split equally between both parents when a court orders JMC. One parent often has the right to choose the primary residence of the child in most custody orders. This parent is typically the one that the kid lives with more than half of the time as well as the one who has the right to receive child support payments.

The parent that fulfills this role can be referred to as the:

  • Custodial parent
  • Primary conservator
  • Managing conservator

The parent that does not fulfill this role can be referred to as the:

  • Noncustodial parent
  • Possessory conservator

Usually, the noncustodial parent is the one that pays child support. They also normally have visitation rights.

What Is Sole Custody?

A court can choose to name one parent as the Sole Managing Conservator (SMC) when there is a compelling reason to do so. This type of order can make it so one parent only has limited rights when it comes to making decisions about their children or it can entirely take away their rights to make certain decisions.

What Is a Standard Possession Order?

Usually, a Standard Possession Order (SPO) will be included in custody orders in Texas. This details the specifics of each parent’s time with their kids. Parenting time in Texas custody orders is referred to as access and possession, however, this is an interchangeable term with “visitation.”

Basic SPOs will outline when the noncustodial parent has possession of the child and where exchanges of the child will take place. It will also outline where the kids spend the holidays and will touch upon how the arrangement will work if the parents live more than one hundred miles from one another.

There are a number of reasons why a court might not follow the SPO, including:

  • Cases that involve child abuse or domestic violence
  • Cases involving children under three years old
  • Cases where the SPO is not considered to be in the child’s best interest

Courts can make any orders in order to protect the child, including ordering the parents to get drug tested or ordering supervised visitation.

Creating a Parenting Plan in a Texas Divorce

You will likely find that it is preferable to create a parenting plan as a part of your divorce settlement agreement with your spouse rather than letting the courts decide on issues of custody and visitation.

There are a number of basic elements you will want to include when making a parenting plan, which are:

  • When the kids will spend time with each of their parents on a regular basis
  • How you will deal with making permanent or temporary changes to the parenting plan in the future
  • How to split important vacation and holiday times, including birthdays and school breaks
  • Who will make day-to-day decisions that impact the children and how important decisions will be discussed and determined together
  • How financial and medical support will be dealt with, including the cost of things like extracurricular activities, hobbies, and school supplies
  • What to do if one parent moves to a new home in a different city or state
  • How the kids will be exchanged
  • How future conflicts will be resolved in order to avoid the need to go to court

You can find a sample parenting plan and other information about co-parenting in Texas in this guide published by the Office of the Attorney General of Texas.

It's worth noting that issues of child custody and support cannot be determined by a prenuptial agreement.

FAQ About Children and Divorce in Texas

Every family is unique, so there's a good chance you have a lot of questions about how divorce will play out in your particular circumstance. Here are some frequently asked questions about children and divorce in Texas.

What If Our Children Don’t Live in Texas?

Texas courts aren’t able to make initial custody and visitation orders regarding a child unless the following is true:

  • The child has lived in Texas for the previous six months at least or since birth
  • The child has been gone from Texas for less than six months and Texas was previously the child’s home state

There are some specific circumstances that might fit within the exceptions to this rule. If you are dealing with a situation where your kids don’t live in Texas and you are getting a Texas divorce, you’ll want to talk to a lawyer.

What If We Don't Agree on Child Support?

Your divorce is contested if you and your spouse don’t agree on the issue of child support. It is usually advisable to work with a lawyer if you are involved in a contested divorce case.

You can also seek help from the Office of the Attorney General. Though they aren’t able to represent either parent in these types of cases, they can ask judges to make orders about the following:

  • Custody and possession
  • Medical support
  • Child support
  • Dental support

Do Our Children Have to Be Involved in Our Divorce?

Yes. When filling out the Original Petition for Divorce, you are required to list all of the children that were born or adopted during your marriage. A judge will ask you– under oath– whether there have been any children born or adopted during the duration of your marriage.

Can I Move Out of State With My Child After Divorce?

The judge’s initial custody order will normally prohibit a child’s primary parent from relocating outside of a pre-determined geographic area. This is typically the current county that the child resides in, in addition to other nearby contiguous counties.

If you want to leave the state with your children after divorce and you have a custody order, you most likely won’t be able to just pack up and leave. Instead, you’ll need to get a court order that gives you permission to make the move.

You will still need to inform the other parent that you are planning on moving away with the child even if you have an older agreement or order that doesn’t specifically outline a particular area that your kid’s residence must be in. The other parent has the ability to file an application for a temporary restraining order if they want to try and stop you from moving away with the child. This type of order would mean that you can’t relocate until a relocation hearing is held by the courts.

A relocation hearing will require that you present compelling reasons that you are leaving the state. These might include relocating to be closer to your family that will be able to help care for the child or relocating for a job. You will not be allowed to move out of state if the court suspects that your motivation for moving is actually to interfere with the relationship your child has with the other parent.

If you're worried that your spouse is going to try and pull something funny during divorce like moving your children out of state, you'll want to learn about some of the other common sneaky divorce tactics to keep an eye out for.

Does Adultery Impact Child Custody?

Unless a parent’s infidelity caused harm to a child, adultery isn’t something that is taken into account when deciding custody in a divorce. This is because the court presumes that just because someone hasn’t been a good spouse doesn’t necessarily mean that they are a bad parent.

Are You Getting Divorced With Children in Texas?

When you're getting divorced with children, the whole process becomes more complicated. After all, you don't only have to consider what post-divorce life will look like for you and your ex-spouse but also for your children.

In the best-case scenario, you and your spouse can come up with a parenting plan that works for both of you. It is unideal to take the case to court and leave this impactful decision up to a judge. After all, you know what's best for your family.

That isn't always possible, however. Luckily, Texas family law is set up in a way that is primarily focused on the best interest of any children involved in a divorce.

If you're getting divorced in Texas, it's a good idea to learn as much as you can about the process. This way, you can be prepared for just about anything as your proceedings unfold.

For more information about divorce in Texas, be sure to check out our Texas family law blog.

Written By:
Sophia Merton
Sophia received her BA from Vassar College. She is a researcher and writer that aims to help make the complexities of the legal system understandable to the layperson. Believing that people can be empowered by understanding their rights and responsibilities under the law, Sophia aims to offer accurate and well-researched information in straightforward and easy-to-digest legal articles.

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