Understanding the Terminology of Child Custody in Texas

If you are facing a divorce that involves children, it is only natural that you put their welfare and well being first. In fact, in such divorces, the elemental issue of dividing marital property comes second only to child custody arrangements. Many parents experience extreme anxiety over the issue of child custody throughout the divorce process, but understanding the lingo can help. The State of Texas employs its own unique set of terms as they relate to child custody, and these terms are more dry and officious sounding than they are warm and comforting. Once you have a feel for them, however, your anxiety is likely to be alleviated.

Texas and Child Custody Language

When you think about divorce and your children, you are no doubt concerned with what your child custody arrangements will be post-divorce. This is naturally your top priority, and before the issue is settled, the uncertainty is likely to cause consternation. The Texas Family Code does not address “custody” per se but, instead, concerns itself with “conservatorship.” While you are probably familiar with the term custody, conservatorship has an institutional sound that many parents find off-putting. If you can familiarize yourself with the term, however, it will make it that much easier for you to move forward confidently.

For your purposes, custody and conservatorship are interchangeable terms – don’t let the language throw you. You and your spouse are your children’s parents – and not their conservators. Conservatorship is simply a legal term that the State of Texas employs to help delineate who maintains the legal rights and responsibilities of raising the children involved. It is not meant as an indictment of your parenting, and it has no bearing on how you will continue to parent.

Conservatorship in Texas

Many divorcing parents fear the term “joint custody” because they think it means that their children will be shuttled back and forth between both parents’ homes equally and will not have one home base. This is not typically the case, and this fact also applies to conservatorship. In Texas, there are only two distinct kinds of conservatorship, and they include joint managing conservatorship (JMC) and sole managing conservatorship (SMC), which closely correspond to joint custody and sole custody. Joint custody doesn’t necessarily mean sharing parenting time equally between both parents, and neither does joint managing conservatorship necessarily mean sharing parenting time equally between both parents – in fact, it usually doesn’t. While the term joint managing conservatorship may not inspire confidence, likening it to joint custody should improve your level of comfort.

It’s important to understand that – as with sole custody – sole managing conservatorship is rare. In the overwhelming majority of cases, parents share the rights and responsibilities of parenting their children after divorce. Again, this is unlikely to mean that your children will divide their time equally between your two homes – there’s more to consider.

The Custodial and Noncustodial Parent

Within conservatorship, there is the custodial parent and the noncustodial parent. If you are determined to be the custodial parent, your home will be your children’s primary home and your ex will become the noncustodial parent. Your children’s noncustodial parent will have a visitation schedule with the kids and will most likely pay child support. Therefore, if you and your ex ultimately share JMC and you are the custodial parent, you will both share the rights and responsibilities of parenting but your children will reside primarily with you. The language is dry, but the meaning is fairly straightforward and will likely assuage your concerns.

The Court’s Concern: Child’s Best Interest

When it comes to conservatorship, the court’s concern is always what’s in the children’s best interests. All things being equal – or being relatively equal – the court’s presumption is that joint managing conservatorship is in the best interest of the children. And generally, this is true. Divorce is difficult adults, but it even more difficult for children. After all, the only family they have ever known is changing directions – and they have no say or power within the process. Having both parents closely involved in their lives helps children transition into their changed circumstances with less stress and anxiety and helps ensure a brighter future for all involved.

Your Divorce and Custody in Texas

Every Texas divorce comes with its own unique set of circumstances, and yours is no different in this regard. Working closely with your experienced Houston family law attorney will help you maintain a better understanding of the divorce process throughout. It’s important to remember that your dedicated attorney is on your side. This means that, if any of the terminology – at any time – gives you pause, he or she is there to discuss it with you. Divorce is complicated and very few people make it through without experiencing considerable stress and anxiety. These aren’t the best conditions within which to make important decisions about you and your children’s future, and no one expects you to be perfect. Go easy on yourself, and ask your lawyer for the help you need. If that includes some extra tutoring regarding Texas’s language of child custody, he or she is happy to help.

Readers also found our article, “Child Custody and Leaving the State before a Divorce” helpful.

If You Have Custody Concerns, an Experienced Houston Family Law Attorney Can Help

If you’re going through a divorce, you’re going through a lot, and your children are naturally your number one concern. While Texas does employ some arcane terminology when it comes to post-divorce parenting, this shouldn’t add to your anxiety. The dedicated family law attorneys at the Rudisel Law Firm, P.C., in Houston, understand your trepidation and are here to help. Our experienced law team has the skill, knowledge, and compassion to work closely with you in aggressively advocating for what’s best for you and your children.

Your case is important to us, so please contact or call us at 713-781-7775 to schedule a free consultation today.

Divorce and Moving the Kids out of State

If your spouse moves your children out of state before either of you has filed for a Texas divorce, it can be to your detriment when it comes to the determination of child custody. If you haven’t begun the divorce process, there may be very little that you can do about the move, but it’s also true that the court may interpret your spouse’s action as wrongful conduct – and this can affect how it ultimately determines custody. If you have questions about how a move out of state with your children – either your own move or your spouse’s – could affect custody, you need an experienced Texas family law attorney.

When the Move Takes Place

Before the court issues a custody order regarding your children, you both share equal rights to possession and access of your children. This means that you can both make important decisions related to your children – including what state they’ll live in – independently of each other. This does not, however, mean that it’s a good idea to move out of state with your children before filing for divorce – such a move can backfire on your custody plans. Experienced legal counsel will guide you through the process of obtaining a court order that identifies each of your parental rights and responsibilities as you navigate the divorce proceedings.

Can I Ensure that My Children Remain in State when They’re with Their Other Parent?

Once there is an order in place regarding time with your children, it typically means that when they are with you, it is your time with them and you can take them where you’d like within that time frame – and the same is true for their other parent. If one of you wants to take your kids out of state, you are free to do so as long as you do so within your designated time. The court may, however, take extenuating circumstances into consideration on a case-by-case basis in determining if additional travel restrictions are warranted.

Which State Determines Orders for the Children

If your spouse has moved out of state with your children and they have lived together there for the six months prior to filing for divorce, Texas probably doesn’t have jurisdiction regarding opening a custody case for your children. Under the Texas Family Code, a new case can only be established if two elements are met:

Texas is the child’s “Home State.”
No other state has jurisdiction (or the other state has declined jurisdiction).

Texas identifies a Home State as being the state in which the children lived with a parent (or with someone acting as a parent) for at least the six consecutive months that precede the commencement of a child custody proceeding. In other words, only the state in which the child lived for the last six months has jurisdiction over the child’s custody. If a child is younger than six months old, this restriction refers to the state the child has lived in since birth.

Child Support

If your children have lived outside of Texas for six months prior to you filing for divorce, Texas will no longer have jurisdiction over custody of your children. As such, Texas can’t issue visitation orders, can’t grant you decision-making rights, and can’t force your divorcing spouse to return to the state with your children. What Texas can do, however, is compel you to pay child support. Texas Family Code allows that a parent living with his or her children outside of Texas can ask for the establishment of Texas child support from the other parent (who does live in Texas).

For more information on support read our family law article, “Houston Child Support Lawyer: Child Support in Texas“.

What if Texas Is My Children’s Home State?

If Texas is your children’s Home State, and your divorcing spouse has moved them out of state, you have options, but it is important to act quickly. If you seek legal relief, you must file for divorce before your kids have been living out of state for six months in order to retain Texas jurisdiction. In such an instance, the court can take action and may instruct your soon-to-be to either return with the children to live in Texas or to return the children to live with you in Texas.

What if My Children Have Been Living out of State for More than Six Months?

If your children have been living out of state with their other parent for more than six months, it means that Texas is no longer your children’s Home State, and in most situations, Texas will have no jurisdiction other than ordering you to pay child support. While you can still obtain a Texas divorce, you won’t be able to address child custody within that divorce.

Addressing Your Concerns

If you are facing a Texas divorce and a move out of state is part of that process, consult with an experienced Houston family law attorney before you take the plunge and move your children out of state – the court could consider your move wrongful conduct, and it could adversely affect the custody of your children. Conversely, if your spouse has moved your kids out of state – or you’re concerned that he or she might do so – time is of the essence. Once you’ve filed for divorce in Texas, the court can issue a custody order that precludes your spouse from moving your kids out of state during the pendency of the divorce proceedings. Whatever your unique situation, you need skilled legal guidance.

If You Have Child Custody Concerns, Contact an Experienced Houston Family Law Attorney Today

Issues related to child custody are often hotly contested during divorce. If you have concerns about moving your children out of state – or about your spouse moving them out of state – during the divorce process, the dedicated legal team at Rudisel Law Firm, P.C., has the experience and knowledge to advocate you and your children’s best interests. We’re here to help, so please contact or call us at 713-781-7775 today.

Category: Child Custody

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