A judge will always decide a child custody matter on a case-by-case basis. This is an overview of common questions people new to a child custody case may have.

What Is a “Contested Custody” Case?

“The “best interest of the child” is always the focus of a child custody case.”
The term “contested custody” does not have a special legal meaning. It is a phrase used by lawyers and laypeople to describe a case where the parents do not agree on issues affecting the children: physical possession, decision-making (referred to as conservatorship) or support. Although the word “custody” does not have a special legal meaning in Texas, people tend to use it to refer to the right to have physical possession of the child more than the other parent. A “custody” battle, therefore, usually involves a dispute over who gets to be the “primary” parent – the parent who has the right to designate the primary residence (which is a conservatorship issue) – and who gets to have possession of the child most of the time. If the parents disagree on this, the parents will likely appear in court at the beginning of the case to have the judge determine what the possession schedule will be during the pendency of the case. Contested “custody” cases are often more expensive and take longer to resolve. However, there is nothing in the law that prohibits a contested case from being resolved by an agreement of the parties rather than by a judge. Settlement is always an option, no matter how far apart the parents’ expectations are in the beginning.

How Does a Judge Determine Custody?

The “best interest of the child” is always the focus of a child custody case. The needs of the child should always come before the needs or desires of the parents. Texas law favors both parents being involved in a child’s life – in terms of physical possession of the child and conservatorship (making decisions for the child). Texas does not favor a mother over a father or vice versa. In fact, judges are technically required to make child custody decisions without giving any consideration to a parent’s gender.

In Texas, the starting point for all custody cases is that the parents will have joint conservatorship of their children. This means that both parents will maintain rights to make decisions about their child. Despite the word “joint,” parents with joint conservatorship of their children do not necessarily have equal time with their children. Conservatorship and possession are two different things, even if people tend to lump them together under the term “custody.”

Texas law only allows one parent to designate the “primary” residence of the child, even if the parties are named “joint managing conservators” of the child. The right to designate the primary residence typically comes with a geographic restriction, to ensure that both parents can maintain frequent contact with the child. This issue is often the focus of contested custody cases because it can affect where the child attends school and whether one parent can move the child far away from the other parent.

“Possession of the child is often the most hotly contested issue.”
Possession of the child is often the most hotly contested issue. Unless the parties agree to equal possession of the child, the party with the right to designate the “primary” residence of the child will usually have primary possession as well. Judges will occasionally order a 50-50 possession schedule, but that is not yet the norm. Instead, the non-primary parent may be awarded a “standard possession order” schedule, which will give that parent less time with the child – particularly during the school year – than the parent who is named “primary”. Under the standard possession schedule, the non-primary parent will have possession of the child every Thursday night, and every 1st, 3rd and 5th weekend. School holidays are split evenly, and the summer is split fairly evenly as well.

Each family has its own history and special circumstances, and judges will carefully consider the facts of each case when deciding issues of conservatorship and possession. These facts include:

  • whether a parent was a stay-at-home parent and the primary caretaker of the child before the divorce;
  • which parent will encourage the child’s relationship with the other parent,
  • the age of the child,
  • the needs of the child, including any special needs; and
  • anything a parent has done or failed to do.

In some circumstances, a court can award one parent sole managing conservatorship of a child. This will give one parent the power to make all major decisions concerning the child without obtaining the agreement of the other parent. For an award of sole managing conservatorship, there will be evidence of extreme behavior by one parent. This can include family violence, abuse, severe drug or alcohol abuse, or other conduct that threatens the safety of a child or makes it impossible for the parties to make decisions together.

Can My Child Decide Which Parent Should Have Custody?

Texas law permits a court to confer with a child. and the law requires the court to confer with a child twelve years or older if a party requests that the judge do so. However, the court will never be bound by what the child wants. It is always up to a judge to make the final decision about child custody.

How We Can Help

The Austin family lawyers at NMSB are ready and able to answer questions about your child custody case. Please contact our office to schedule an appointment. For more information on common issues relating to child custody, please also see our Frequently Asked Questions page and click on the “Child Custody” button.