The Basics of Child Custody Law in Texas

By Sean Quick, Fort Bliss Legal Assistance Office 

For parents, there are few concepts more terrifying than losing access to their children, and the stress of not knowing how to prevent that can be overwhelming. This is exacerbated by the fact that the laws governing child custody are complex and varied. Federal law, while important, plays a minimal role in child custody cases. The primary applicable federal law for child custody in Texas is the Parental Kidnapping Prevention Act of 1980.

The PKPA prevents parents who are disappointed in a custody ruling from travelling to another state to seek a different outcome. The PKPA requires all state courts to enforce another state court’s custody decision unless there is a significant reason not to do so. For parents looking to overrule a state court’s decision, simply moving to a different court will not provide a solution.

Beyond the PKPA, federal laws are generally absent in child custody cases. Individual state laws are the primary means of regulating child custody in the U.S., with each state being responsible for creating its own set of child custody laws. However, it is extremely important to understand how jurisdiction plays a role in these laws, as jurisdiction determines which state has authority to hear a case.

Texas has jurisdiction to rule on child custody cases only if it is the home state of the child or was the home state of the child for six months before proceedings began and the child is absent from Texas while a parent remains. Texas law also explicitly notes how parents can bypass the PKPA: if another state court has already ruled on a child custody case, a Texas court can change that ruling if the other state court decides it no longer has jurisdiction. The other state court can also decide that a Texas court would be preferable if Texas has jurisdiction and neither the child nor the child's parents currently reside in the other state. Parents should note that simply having personal jurisdiction over a child, i.e., which the state in which the child is physically present has, plays no role in determining custody.

Beyond jurisdiction, a great deal of discretion is given to Texas courts when reviewing a child custody case. The ability of a parent to care for their child and what is in the child’s best interests are the critical factors in deciding custody for Texas courts. Parental ability is determined by reviewing, among other things, the parent’s finances, employment, and any travel/work hours that would prevent time with the child. A child’s best interests is determined by scrutinizing factors such as home stability, the parent’s plan for raising the child, the current and future physical and emotional needs of the child, prior harmful parental actions, the wishes of the child (if the child is 12 or older), and the overall parenting ability of each parent.

It is important to note that Texas law states mothers and fathers have equal rights and refers to custody as “conservatorship.” Conservatorship in Texas can be legal or physical. Legal custody is called a managing conservatorship and refers to a parent’s right to decide how a child is raised. Physical custody is known as a possessory conservatorship and allows a parent to visit and spend time with the child but does not grant them the right to make legal decisions. If parents divorce, it will be up to the court to determine how conservatorship is assigned based on the factors mentioned above, but the law presumes that the parents should be joint managing conservators. This means both parents share the legal and physical aspects of conservatorship and the associating decision-making responsibilities for the child. If parents disagree on how to handle conservatorship, they may be ordered to attend family counseling.

If parents are worried about going to court to determine custody, they should note that it is Texas law that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child. Texas courts also encourage the use of an Agreed Parenting Plan, which is a plan written and agreed upon by both parents and covers how to raise the child and split conservatorship after the parents separate. If the court determines the parents’ plan is in the child’s best interests, it will issue a ruling based on the plan. This gives parents an ideal way to ensure a court’s ruling is in line with their wishes for raising their child.

The parent of a child also has multiple rights regarding that child in Texas. These rights include, but are not limited to, the right to physical possession of the child, the right to designate the child’s residence, and the right to represent the child legally and make legally significant decisions concerning the child. If a parent is appointed as a conservator, they have, at all times, the right to receive information from any other conservator about the child’s well-being, to be informed of significant events affecting the child, to confer with the other parent before making an important decision regarding the child, access the child’s important records, to consult with medical and educational professionals for the child, to attend school activities, to be designated as an emergency contact, to consent to emergency treatment for the child, and to manage the child’s estate.

These rights are inherent in each parent unless the parent agrees to relinquish those rights or there is a court order affecting the rights. For parents who wish to stay in their child’s life and have no parenting issues, these rights are all likely to apply. If there is any history of abuse of a child, then parental rights will be severely curtailed or completely removed by Texas courts.

For military parents who travel abroad, Texas law does consider the potential for a conservator to have a military deployment order. If this occurs, a parent will not lose rights to their child simply because they are no longer nearby. Instead, a court may issue a temporary modification of any previous ruling to account for the deployed conservator’s absence, which is generally rescinded when they return.

A Texas court will also usually set up a means of electronic communication between a conservator and the child to ensure regular contact, whether they are deployed or not. This is most common when a parent lives sufficiently far away from the child, making regular physical contact sparse. However, simply because a parent does not live near a child does not mean they can no longer spend time with them. Texas law has different visitation rules depending on if parents are within 100 miles of each other or not, but both rules include regular contact between parents and their child. Even better, holiday visitations do not follow these rules and a parent is entitled to have time with their child, on alternating years, for specific holidays such as Thanksgiving, Christmas/winter break, and Mother’s and Father’s days.

While most child custody laws are derived from state law, Army regulations must also be considered for soldiers. The main Army Regulation governing child custody cases is AR  608-99, which primarily covers parents who are attempting to avoid interactions and obligations with their child. Soldiers are required to provide financial support to family members and must comply with the provisions of all applicable court orders, laws, and treaties regarding child custody and visitation. It is also important for soldiers to resolve their own issues so that personal problems do not become official matters of concern for their commanders or the Army. If soldiers have any child custody inquiries, they should be directed to their company commander.

To speak with an attorney on this subject, or any other topic, please schedule an appointment with the Fort Bliss Legal Assistance Office. Appointments may be made via email at usarmy.bliss.hqda-otjag.mesg.bliss-legal-assistance-office@army.mil, or via phone at (915) 568-7141 during business hours.