When we represent a parent in a divorce or a child custody matter, our clients often worry about who will become the “primary custodial parent.” However, that term does not exist under Texas family law. During court proceedings, you will hear words like primary custody, custodial parent, and non-custodial parent. Attorneys and family law judges use primary custody to refer to the parent whose home becomes the primary residence of their child for legal purposes like schooling, health insurance, or taxes.
Many parents believe that they won’t see their child if they don’t get primary custody in a divorce or child custody dispute. However, both parents can enjoy an involved, meaningful relationship with the child regardless of where they live. If you have questions about primary custody, contact Minton, Basset, Flores & Carsey, P.C., for an initial consultation with an experienced family law attorney.
Standard Possession Order in Texas
In Texas, the court often gives one parent the right to decide where the child will live as their primary residence. When a parent receives this right, parties commonly refer to that parent as having primary custody or being the custodial parent, with the other parent deemed the non-custodial or non-primary parent.
The court usually issues a standard possession order (SPO) establishing a family’s custody schedule. Under a standard possession order, children will live with the parent with primary custody by default, while the other parent receives designated parenting or visitation time.
In many standard possession orders, the non-custodial parent will get to spend overnights with their child during weekends to minimize disruptions to the child’s schooling, plus blocks of time during school vacations or holidays. The law makes specific provisions for custody depending on how far apart the parents live from each other.
Understanding Conservatorship and Possession
Texas law divides child custody into two categories: conservatorship and possession. Conservatorship, sometimes called legal custody, refers to a parent’s right to decide on their child’s behalf about education, healthcare, and religious and moral upbringing. Possession, sometimes called physical custody, refers to a parent’s right to access their child and spend time with them.
Texas public policy has a rebuttable presumption that naming a child’s parents as joint managing conservators will serve the child’s best interests. In a joint managing conservatorship, parents must share decision-making rights and cooperate to reach mutually agreeable decisions regarding their child’s upbringing. However, to avoid future litigation if parents reach an impasse over decisions for their child, courts may give one parent the final say regarding decisions.
Expanded Standard Possession Order vs. Standard Possession Order
Texas recently authorized another SPO that provides more parenting time for non-custodial parents who live within 50 miles of the custodial parent. In an expanded standard possession order (ESPO), the non-custodial parent may receive longer visitation periods that start earlier and end later, with the non-custodial parent responsible for picking their children up from school at the end of the week and taking them to school at the beginning of the following week.
During a collaborative divorce or family law mediation, parents can further customize a standard possession order or expanded standard possession order to suit their needs better. The SPO and ESPO provide stability for children during the school year. Therefore, the court usually defaults to either order if parents cannot agree on a customized parenting schedule.
Custodial vs. Non-Custodial Parental Rights in Texas
When parents serve as joint managing conservators, attorneys and courts may refer to the custodial parent as a managing conservator and the non-custodial parent as the possessory conservator, which reflects the custodial parent’s authority to determine the child’s primary residence. By default, a custodial parent’s rights in decision-making for their child will include:
- The ability to choose the child’s primary residence (unless the custodial parent decides to relocate to another state with their child)
- The right to authorize medical and mental health treatment for the child (including emergency treatment decisions that preclude consultation with the other parent)
- The right to receive child support payments as determined by the Texas Child Support Guidelines and the court
- The right to make legal decisions for the child, including the retention of legal representation
- The ability to make decisions regarding the child’s education
- The right to act on behalf of the child’s estate when required by state or federal law
- The ability to consent to the child’s marriage or enlistment in the Armed Forces
Apart from these decisions, a non-custodial parent has many of the same parental rights as a custodial parent. Except for the right to choose a child’s primary residence, which must remain the custodial parent’s exclusive decision, parents may negotiate a custody arrangement that requires parents to agree on issues like authorization of medical or mental health treatment, where to enroll their child for school, and providing consent for their child to enlist in the military or participate in other activities. The court may also mandate parents to agree on certain decisions for their children’s upbringing if an agreement serves their children’s best interests.
Get in Contact with a Family Lawyer Near You
If you’ve found yourself in a child custody dispute with your ex, turn to an experienced Texas family law attorney to help you protect your and your children’s interests. Contact Minton, Bassett, Flores & Carsey, P.C. today for a confidential consultation to discuss your options with our skilled legal team.