Filing for Sole Custody in the State of Texas: What You Need to Know
What does “sole custody” mean? It probably depends on who you ask. When some clients use the term, they mean only that they want to have physical custody of their child a majority of the time. For others, it means a type of custody in which the other parent’s rights are severely restricted or even terminated. This confusion may be, in part, because “sole custody” isn’t a legal term - at least, not in Texas.
Instead, the Texas Family Code uses the term “conservatorship” to refer to a parent’s legal rights regarding their child. Conservatorship encompasses many different rights and obligations, from the duty to provide a child with adequate food and shelter to the right to make educational or medical decisions on the child’s behalf.
Basic Parental Rights in the State of Texas
An important thing to know when discussing conservatorship in Texas is the presumptions at play. The state of Texas’s public policy is, among other things, to ensure that children have frequent and continuing contact with their parents and to encourage parents to share in the rights and duties of raising their child, even after divorce or if the parents are never married.
In deciding issues of conservatorship, a Texas judge is always required to base their decision upon what is best for the child, not what is best for the parents.
Parents have a great many other rights and duties under Texas law. However, because the best interest of the child is always the court’s guiding light, it has the power to alter those rights and duties to achieve that goal.
Types of Custody in the State of Texas
In Texas, parents are usually appointed as either a managing conservator or a possessory conservator. Here are the key differences between those terms:
1. Managing Conservators
Broadly speaking, managing conservators are the persons with the right to make many different kinds of decisions about the child’s life, ranging from medical decisions to those about religious and moral instruction. Unless it would be harmful to the child's physical or emotional health, the Texas Family Code presumes that both parents should be named joint managing conservators.
“Joint managing conservators” means the parents will generally share in the rights and duties of a parent, even if the exclusive right to make certain decisions may be awarded to one party. For example, even with joint managing conservators, one parent is usually given the sole or primary right to decide the child’s primary residence. This means the child will live with them and visit the other parent - a traditional custody and visitation arrangement, as most people are familiar with it.
However, if it’s in the best interest of the child, the court may name one parent as the sole managing conservator, meaning they alone have the right to make all or most of those major decisions for the child. We’ll discuss this more in a later section.
2. Possessory Conservators
Possessory conservators have the right to spend time with the child but don’t have any right to make major decisions on their behalf. Even if a court finds its in the best interest of the child to name one parent as the sole managing conservator, it will usually name the other a possessory conservator. Even though a parent may be “only” a possessory conservator, they still have many rights and duties regarding the child - such as the right to receive information concerning the health, education, and welfare of the child.
Important Note: In the state of Texas, conservatorship does not dictate child support. The Texas Family Code states that decisions regarding managing conservatorship shall not impact the court’s authority to make child support determinations in favor of either conservator.
Obtaining Sole Managing Conservatorship and Sole Physical Possession in the State of Texas
As you can see from the above discussion, a parent’s rights and obligations are numerous. What’s more, the laws of the state of Texas favor maintaining and fostering a relationship between a child and each parent. To curtail or eliminate the rights of one parent, the other will have to convince the Court that doing so is in the child’s best interest.
Although it is technically possible to pursue a change in conservatorship without legal representation, this is generally not recommended. Family law is complex and requires very specific filings, steps, and proof. In addition, many custody disputes escalate into nasty conflicts. Even if you and your ex get along or you feel your child custody case is straightforward, a custody issue is rarely simple or easy. The Law Office of Robert Tsai, PLLC, offers a discounted consultation fee for exactly this purpose. We invite you to contact us.
Step One: Begin Collecting Evidence
Begin gathering compelling evidence for your custody case as soon as possible. Judges examine many dynamics when determining what’s in the child’s best interest, including a parent's stability, health, income, relationship with their child, and ability to provide a healthy living environment for the child.
In addition, you must be able to demonstrate your capacity to provide for your child’s emotional, physical, and financial needs in detail. If you’re working with a lawyer, they will give you a list of evidence to collect, some of which may include:
The child’s educational records
The child’s medical records
Your employment records
Your financial records
You also might consider an expert witness, such as a child psychologist or social worker, who can attest that naming you as the sole managing conservator is in the child’s best interest. The more evidence you gather, the stronger your child custody case will be.
If the other parent’s behavior is motivating you to seek sole managing conservatorship of the child, you will also need to collect evidence of that concerning behavior. This can be a difficult and delicate process and is yet another way an experienced family attorney can help you.
Remember, the court presumes that what is in the child’s best interest is to have both parents actively involved in their life. Run-of-the-mill disputes about what’s in the child’s best interest won’t be enough to severely restrict the other parent’s rights toward the child. You'll need a compelling argument and proof to back it up.
Important Note: In the state of Texas, the child’s opinion regarding physical custody is not determinative. Once the child turns 12, the court may take a child’s testimony regarding their preferences into account, but it’s still up to the judge to decide what’s in the child’s best interest.
Step Two: Filing Suit
In Texas, lawsuits establishing conservatorship of a child - which can be part of a divorce proceeding or a separate action - are called Suits Affecting the Parent-Child Relationship, or SAPCRs. An example can be found in this form, made available online by texaslawhelp.org). If you’ve already filed a SAPCR and are asking the court to change the orders from that suit, then you will be filing a Petition to Modify a Parent-Child Relationship.
In many ways, these are like any other lawsuit - you have to file it with the Court, explain your reasons for what you’re asking the court to do, and then serve the other parent with notice of the suit.
Step Three: Serving the Papers
In the state of Texas, you must serve the other parent with formal legal notice of the suit. You can arrange for a constable, sheriff, or private process server to serve the initial court papers. Once the other parent is served, you will receive a completed Return of Service form. File this form with the court as proof that the respondent was served. This will start the clock on the time the other parent has to respond to your suit.
After that, you’ll have a chance to obtain and develop further evidence in support of your request through discovery requests and depositions. However, the other parent will have the opportunity to do the same. Often, this process can be time-consuming, acrimonious, and expensive.
Step Four: Make Your Best Case
Once both parties have had time to collect their evidence, they will make their argument to the court. This will require a hearing in front of the Judge that is very much like a trial. Each side will present witnesses and testimony and be allowed to question the other side’s witnesses. Eventually, the Judge will review all of the evidence and arguments and make a ruling as to what is in the best interest of the child.
In the state of Texas, obtaining exclusive custody of a child is challenging. Not every parent who seeks sole managing conservatorship will get it, but your chances of winning are much higher if you work with an expert in family law, like Robert Tsai.
To schedule a consultation about your custody issues, contact us today. The Law Office of Robert Tsai, PLLC offers strong legal representation in child conservatorship, modification, and enforcement cases. We are here and ready to help.