Texas custody and visitation must be in the child's best interest

Texas law strongly emphasizes that, first and foremost, the state court must consider the child's best interest when deciding matters of child custody and parental access. Of course, parents have important rights where raising their kids is concerned, but Texas puts the child's unique needs above all else, as do other states in the U.S.

Specifically, Texas law states that a child should have a "safe, stable, and nonviolent environment."

Texas public policy

By statute, the Texas legislature established state public policy that kids should have "frequent and continuing contact" with their parents, if a mother or father can act in the children's best interests. In that light, parents are officially encouraged to share in the "rights and duties" inherent in raising their kids after divorce or separation.

Terminology

Texas family law uses unique terminology:

• Child custody is a "managing conservatorship"
• Visitation is "possessory conservatorship," "possession" or "access"
• Sole custody is a "sole managing conservatorship"
• Joint custody is a "joint managing conservatorship," presumed to be in the child's best interest unless shown otherwise
• The parent who can decide where the child will  live has the "right to establish the principal residence"

Considerations

Interestingly, Texas law also mandates that when the family court judge looks at custody and visitation issues, he or she may not consider the parents' marital status or genders, nor may the judge use the child's gender as a factor.

The judge should, however, consider evidence that either parent has intentionally used physical violence or sexual abuse in the past two years against a spouse, the child's other parent or any minor child. The law lays out very specific presumptions the judge must make and orders that may or may not be made when family violence is an issue.

A child at least 12 years old may tell the court which parent the son or daughter would like to have the power to decide where the child will live, but the court is not required to grant that request if it is not in the child's best interest. Texas law provides for mandatory or optional interviewing of a child by the judge out of the courtroom in the judge's chambers, depending on the circumstances.

Marital agreement

The parents may be able to negotiate a marital settlement agreement that decides issues of child custody and visitation. However, Texas law requires that certain specific matters be included in such an agreement and it must be submitted to the court for approval. The Texas family court judge may reject such an agreement if it is not in the child's best interest.

If the parents cannot agree on conservatorship, residential decision making and possession, the judge must make these determinations based on the child's unique interests. Texas statute requires that the judge consider all relevant factors in deciding whether joint conservatorship is appropriate like whether it would benefit the "physical, psychological, or emotional needs and development of the child," whether the parents could work together for the child, physical proximity of the two residences, historical parental involvement and more.

The final court order that sets custody and visitation terms must include a "parent plan" that sets out which decision-making powers are assigned to which parent and normally the details of a visitation schedule.

Legal counsel can be crucial

This article introduces the topic of Texas child conservatorship, which is detailed and nuanced. Any Texas parent facing issues of custody or visitation should consult with an experienced family lawyer to understand how the law is likely to impact the particular family situation and for vigorous, informed legal representation.