Child Custody

Either parent may request and be granted primary custody of their child. Protect your child’s ability to have a loving relationship with both of their parents. Situations involving custody of a child can be legally complex and emotionally devastating. Please keep your child’s best interest in mind.

In Texas, the law refers to child custody as “conservatorship.” Texas child custody laws are in compliance with the Uniform Child Custody Act, which seeks to minimize child custody conflicts that involve more than one state.

When it comes to custody cases, parents may choose to file a parenting plan (a proposed custody and/or visitation schedule) with the court. If parents do not submit a parenting plan, the court will decide on a custody arrangement for the parties. As with most other states, Texas courts are required to consider the child’s own wishes when making a custody determination. In addition, the court also considers a number of other factors, including:

  • Whether joint conservatorship (joint custody) would benefit the child’s physical, psychological, and emotional well-being;
  • Whether each parent will encourage and promote a relationship between the child and the other parent;
  • Whether the parents can communicate effectively to make decisions that promote the child’s best interests;
  • How much each of the parents contributed to the child’s upbringing before the custody case was filed;
  • How close or far each parent’s home is located in relation to the other; and
  • Any other factors the court determines should be considered under the circumstances of the case.

Child custody and legal guardianship are legal terms which are used to describe the legal and practical relationship between a parent or guardian and a child in that person’s care, such as the right to make decisions on behalf of a child and the duty to care for and support the child.

Residence and contact issues typically arise in proceedings involving divorce (dissolution of marriage), annulment, and other legal proceedings where children may be involved. In most jurisdictions, the issue of which parent the child will reside with is determined in accordance with the best interests of the child standard.

Parental conflict

Family law proceedings that involve issues of residence and contact often generate the most acrimonious disputes. While most parents cooperate when it comes to sharing their children and resort to mediation to settle a dispute, not all do. For those that engage in litigation, there seem to be few limits. Court filings quickly fill with mutual accusations by one parent against the other, including sexualphysical, and emotional abusebrain-washingparental alienation syndromesabotage, and manipulation. Custody battles are not in the child’s best interest and are often used by an angry parent in order to control his/her former partner.

In some places, courts and legal professionals are beginning to use the term parenting schedule instead of custody and visitation. The new terminology eliminates the distinction between custodial and noncustodial parents and also attempts to build upon the best interests of the children by crafting schedules that meet the developmental needs of the children. For example, younger children need shorter, more frequent time with parents, whereas older children and teenagers may demand less frequent shifts yet longer blocks of time with each parent.


Forum shopping to gain advantage occurs both between nations and where laws and practices differ between areas within a nation, The Hague Convention seeks to avoid this, also in the United States of America, the Uniform Child Custody Jurisdiction and Enforcement Act was adopted by all 50 states, family law courts were forced to defer jurisdiction to the home state.


As the roles of children have changed over the past couple of centuries from economic assets to individuals, so has the role of mothers and fathers in who would provide the best care for the child. Many courts and judges lean more towards the maternal figure when there is a trial for custody of a child. According to Family Change and Time Allocation in American Families study done at UCLA, women allocate about 13.9 hours a week to childcare while men allocate about 7 hours a week. Additionally, according to the Current Population Survey, in 2013, custodial mothers were more likely to have child support agreements (52.3 percent) comparative to custodial fathers (31.4 percent).

Women’s and father’s rights activists often become involved in matters of child custody since the issue of equal parenting is controversial, most of the time combining the interests of the child with those of the mothers or fathers. Women’s rights activists are concerned about “family violence, recognizing primary caregiving, and inequities associated with awarding legal joint custody without a corresponding responsibility for childcare involvement”. Father’s rights activists are more concerned about their “disenfranchisement from children’s lives, the importance of parent-child attachment, combating parental alienation, and access enforcement”. Courts cannot determine an individual child’s best interests with certainty, and judges are “forced to rely on their own interpretations of children’s interests, and idiosyncratic biases and subjective value-based judgments, including gender bias”. Judges are currently using the ‘best interest of the child’ standard that was made to consider the interests of the child before the mothers and fathers, including the child’s mental, emotional, physical, religious, and social needs.

Child poverty, lack of resources, and women’s economic dependence on men all remain pressing issues that are not effectively noted during the custody trials.

In any situation where child custody rights are at issue, a number of key questions are raised. If you are going through a divorce, you will want to know whether your child will live primarily with you, and if not, whether will you will be able to make important decisions as to how your child will be raised. If you are a close relative or family friend of a child who is not your own, you may be wondering if getting custody of that child is even a possibility.

Answers to these questions are at the root of most custody situations, but for parents and others without significant experience with child custody and the legal system, a fundamental concern is: How are custody decisions made? Following is a brief discussion in response to that question.

Divorce and Child Custody Decisions

If you are a parent considering divorce, or if you are already involved in the process, you are probably wondering how child custody and visitation issues are resolved in a divorce. In general, like all aspects of a divorce — including property division, child support, financial division, and spousal support (alimony) — child custody and visitation will either be decided by agreement between the divorcing couple (usually with the help of attorneys and mediators) or by the court. More specifically, custody and visitation decisions are typically resolved in one of two main ways in a divorce:

  1. Parents reach an agreement on child custody and visitation, as a result of:
    • Informal settlement negotiations (usually with the help of attorneys); or
    • Out-of-court alternative dispute resolution proceedings like mediation or “collaborative law” (usually with the help of attorneys).

    Learn more: Reaching a Custody Agreement Out-of-Court

  1. The court makes a decision on child custody and visitation (usually a family court judge).Learn more: Custody Decisions in Family Court

Unmarried Parents and Child Custody Decisions

When a child’s parents are unmarried, the statutes of most states require that the mother is awarded sole physical custody unless the father takes action to be awarded custody. An unwed father often cannot win custody over a mother who is a good parent, but he can take steps to secure some form of custody and visitation rights.

For unmarried parents involved in a custody dispute, options for the custody decision are largely the same as those for divorcing couples — child custody and visitation will be resolved either through an agreement between the child’s parents or by a family court judge’s decision. But, unlike divorcing couples, unmarried parents will not need to resolve any potentially complicated (and contentious) divorce-related issues such as division of property and payment of spousal support, so the decision-making process is focused almost exclusively on child custody. For this reason, resolution of custody and visitation may be more simplified for unmarried parents.

If unmarried parents do not reach a child custody and visitation agreement out-of-court, the matter will go before a family court judge for resolution.

Especially when making child custody decisions involving unmarried parents, the family court’s primary consideration will be to identify the child’s “primary caretaker.” See Checklist: Who Gets Custody? for a list of factors that a court typically considers in determining “primary caretaker” of a child.

Non-Parental Child Custody Decisions

In some cases, people other than a child’s parents may wish to obtain custody — including relatives like grandparents, aunts, uncles, and close family friends. Some states label such a situation as “non-parental” or “third-party” custody. (Note: Other states refer to the third-party’s goal in these situations as obtaining “guardianship” of the child, rather than custody.)

Whatever the label, most states have specific procedures that must be followed by people seeking non-parental custody. The process usually begins when the person seeking custody files a document called a “non-parental custody petition” (or similarly-titled petition) with the court, which sets out the person’s relationship to the child, the status of the child’s parents (living, dead, whereabouts unknown), and the reasons the person is seeking (and should be granted) custody. Usually, a copy of this petition must also be delivered to the child’s parents, if they are living and their whereabouts are known. See FindLaw’s Guardianship section for more information

Free Child Custody Case Review

If you are going through a child custody battle, you’ll want to know the laws and how decisions about your child will be made. You don’t have to be a legal expert to get this information. But a good way to learn about the child custody laws in your state is to have a family law attorney on your side. Get a free child custody case review today at no obligation to you.



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