FAMILY ISSUES | Child Custody

A divorce of spouses with children involves issues of who will have "custody" of the children and how much child support, if any, the noncustodial parent will have to pay. In deciding custody and visitation issues, the best interests of the children is always the primary consideration.


In Texas, the term "conservatorship" is used instead of "custody" when referring to the parents' obligations arising from the parent-child relationship. The person with whom a child is assigned to live is called the "managing conservator" and any other person who is given the right to "possess" the child at any time is called a "possessory conservator."

In a divorce or any other proceeding that may affect the parent-child relationship, the court may appoint

  1. one of the divorcing spouses as sole managing conservator and the other spouse as possessory conservator
  2. both spouses as joint managing conservators
  3. some other competent adult (such as a grandparent or other relative) as managing conservator, or
  4. one or more other persons as possessory conservators

What can be expected

Joint conservatorship by the parents is presumed to be in the best interest of the child, and this is the typical result. However, this presumption can be overcome if evidence is available to show that the child's best interests are not served by joint conservatorship. For example, evidence of domestic violence or abuse can be used to overcome (rebut) that presumption.

The parties to a divorce proceeding may assign conservatorship between themselves by written agreement and that agreement will be included in the divorce decree if the court finds that is its in the child's best interest.

If the court appoints both parents as joint conservators, it will also specify what parental rights and duties are to be retained by

  • each parent equally but individually
  • both parents jointly
  • exclusively by one parent

What will the court consider in deciding?

When deciding whether it will appoint a given person as a conservator of a child, the court can consider any evidence of that person's conduct that reflects on whether it would be in the child's best interest for that person to serve as conservator. For example, any evidence of any form of abuse or neglect directed toward the child or committed in the child's presence can weigh heavily against the person committing the abuse or neglect.

In determining a child's best interests, the court will consider the following:

  • (1) the desires of the child,
  • (2) the emotional and physical needs of the child now and in the future,
  • (3) the emotional and physical danger to the child now and in the future,
  • (4) the plans for the child by the party seeking to be appointed conservator and
  • (5) the stability of the home or proposed placement.

Who else besides parents can be appointed conservators?

Grandparents, step-parents, or any competent adult may be appointed as a managing or possessory conservator under prescribed circumstances. Also, an authorized agency or licensed child-placement agency may be appointed as conservator in some circumstances.