When parents in Seguin divorce and can't agree on the children, a judge in the Guadalupe County courts decides. Many parents walk in thinking the court will favor mothers, or that the child gets to pick, or that the parent who earns more wins. None of that is how Texas law works. The question in every Texas custody case is the same: what is in the best interest of the child?
This article explains how Texas judges answer that question, what "custody" actually means in Texas, and what you can do to put your best case forward.
Custody in Texas: conservatorship and possession
The Texas Family Code doesn't use "legal custody" and "physical custody." It uses two ideas instead:
- Conservatorship is about decision-making rights and duties, such as consenting to medical care, enrolling in school, getting records and deciding where the child lives.
- Possession and access is the schedule: when the child is with each parent.
A parent can be a joint managing conservator (sharing rights with the other parent), a sole managing conservator (holding most rights alone), or a possessory conservator (having visitation and some rights, but not the major decision-making rights).
The presumption of joint managing conservatorship
Texas law presumes that naming both parents joint managing conservators is in the child's best interest. Most Texas divorces with children end with both parents as joint managing conservators.
That presumption can be overcome. The most important exception is family violence. If there is credible evidence of a history or pattern of family violence, child abuse or neglect by a parent, the court is not supposed to appoint that parent as a joint managing conservator. A court can also name one parent sole managing conservator if joint conservatorship simply wouldn't work for the child, for example when one parent has been absent from the child's life, has serious substance abuse problems, or the parents can't cooperate at all on decisions.
Joint managing conservatorship does not automatically mean a 50/50 schedule. It means shared rights. Time is decided separately.
Rights and duties
A custody order lists the rights and duties of each parent. Some are shared; others are given to one parent exclusively or split. Common rights include:
- The right to designate the child's primary residence.
- The right to consent to non-emergency medical, dental and surgical treatment.
- The right to consent to psychiatric and psychological treatment.
- The right to make decisions about the child's education.
- The right to receive and spend child support for the child's benefit.
- The right to apply for a passport and to represent the child in legal matters.
Every parent, unless a court limits it, generally keeps rights like getting information from the other parent about the child's health and education, accessing school and medical records, and attending school activities.
Primary residence
In most joint conservatorship orders, one parent gets the exclusive right to decide where the child primarily lives. That decision is often limited by a geographic restriction, for example to Guadalupe County and the counties next to it. The parent with this right usually receives child support, and the other parent usually has a possession schedule such as the Standard or Expanded Standard Possession Order.
Because primary residence is the right parents fight over most, many contested custody trials really come down to this one question.
The best-interest factors (the Holley factors)
Texas courts often use a list of factors from a Texas Supreme Court case, Holley v. Adams, to analyze a child's best interest. The list isn't exhaustive, and no single factor controls. The factors include:
- The child's desires.
- The child's emotional and physical needs now and in the future.
- Emotional and physical danger to the child now and in the future.
- The parenting abilities of the people seeking custody.
- Programs available to help those people promote the child's best interest.
- The plans for the child by the people seeking custody.
- The stability of the proposed home.
- Acts or omissions of a parent that may show the existing parent-child relationship is not a proper one.
- Any excuse for those acts or omissions.
Other things judges commonly look at
Beyond the Holley list, judges consider many practical facts, such as:
- Who has been the primary caregiver: who takes the child to the doctor, handles school, makes meals and manages bedtime.
- Stability: keeping the child in the same school, home and community when possible.
- Each parent's willingness to support the child's relationship with the other parent. A parent who badmouths the other or interferes with visits often hurts their own case.
- Work schedules and who can actually be there for the child.
- Sibling relationships. Courts generally prefer not to separate siblings.
- Substance use, criminal history and mental health, to the extent they affect parenting.
- The child's wishes, especially for a child 12 or older, who can be interviewed by the judge. See a child's preference in Texas custody cases.
Texas law also says the court can't consider a parent's gender or the child's gender when deciding conservatorship. Mothers and fathers start on equal footing.
Family violence
Family violence carries special weight. Besides affecting whether joint conservatorship is allowed, it can lead to supervised visitation, exchanges at a safe location, or other limits. The court considers violence directed at the other parent, the child, or other household members. If you are a victim of family violence, a protective order may be part of your plan.
False accusations are also taken seriously. A parent who knowingly makes false reports of abuse can damage their credibility with the court.
How to present your best case
- Keep a simple calendar or journal of your time with your child and anything significant that happens.
- Gather school, medical and activity records that show your involvement.
- Communicate with the other parent in writing, calmly and respectfully. Assume the judge will read it.
- Stay off social media about your case and the other parent.
- Follow any temporary orders exactly.
- Never involve your child in the dispute or ask them to pick sides.
Every case is different, and no lawyer can promise a particular result. A lawyer can help you understand how these factors apply to your family. Attorney Jesus R. Lopez has over 20 years of Texas family law experience and helps parents across Guadalupe County. Learn more on the child custody lawyer page or contact us for a free consultation.
Frequently asked questions
Do Texas courts favor mothers in custody cases?
No. Texas law tells courts not to consider the gender of the parent when deciding conservatorship. Judges look at the child's best interest.
Does joint managing conservatorship mean 50/50 time?
Not necessarily. It means shared decision-making rights. The possession schedule is set separately and may be a standard schedule, an expanded schedule, or an equal schedule if agreed or ordered.
What are the Holley factors?
They are a list of best-interest factors from a Texas Supreme Court case, including the child's desires, needs, any danger to the child, parenting abilities, plans for the child and the stability of each home.
Can the judge give one parent sole custody?
Yes. A judge can name one parent sole managing conservator if joint conservatorship is not in the child's best interest, such as when there is a history of family violence or neglect.
Have questions about your situation? Talk with a Seguin child custody lawyer. Consultations are free, by phone or in person, in English or Spanish.
Related guides
This article is general information about Texas law, not legal advice for your situation. Laws change, and every case is different.