What is custody?
In Texas, the legal word for custody is “conservatorship.” The words "custody" and "conservatorship" describe your relationship with a child when there is a court order.
What if I don’t have a court order?
Legal custody can only be created by a court order. Without a court order, there is nothing for a judge to enforce. Each parent is free to take the child at any time.
What is a conservator?
A person with court ordered custody of a child is called a “conservator.”
There are three types of conservators:
- Joint Managing Conservator
- Sole Managing Conservator
- Possessory Conservator
What is a Joint Managing Conservator?
Texas law says that parents should usually be named Joint Managing Conservators. A joint conservatorship order means the parents share decisionmaking about most issues, including education and healthcare. It does not mean the child’s time is split equally between the parents. A possession order will say when each parent has the right to time with the child. Read this short article to learn more about possession orders: Child Visitation & Possession Orders.
In most joint conservatorship orders, one parent will have the exclusive right to decide where the child lives (usually within a certain geographic area). This parent is called the “custodial parent” and the child usually lives primarily with this parent. The other parent is called the “non-custodial parent.”
In some joint conservatorship orders, neither parent will have the exclusive right to decide where the child lives but the child’s residence will be restricted to a certain geographic area, like a school attendance zone or county.
The law says that parents should not be named Joint Managing Conservators if there is a history or pattern of violence by one parent against the other parent.
What is a Sole Managing Conservator?
When there is a good reason to do so, one parent (or sometimes a non-parent) can be named Sole Managing Conservator. A Sole Managing Conservator has the exclusive right to make most decisions about the child.
Reasons a judge might name a parent (or nonparent) Sole Managing Conservator include:
- family violence by the other parent
- child abuse or neglect by the other parent
- alcohol or drug abuse by the other parent
- absence of the other parent in the child’s life
What is a Possessory Conservator?
If one parent is named the Sole Managing Conservator, the other parent is usually named the Possessory Conservator. If a nonparent is named the Sole Managing Conservator, both parents will usually be named Possessory Conservators. A Possessory Conservator still has the rights of a parent, but will not have the final say on most decisions.
Will the judge consider family violence when making custody decisions in my case?
If the other parent has been violent or abusive, it’s important to talk with a lawyer about your case. You may be able to get free legal help. Call one of the organizations listed below for more information:
- National Domestic Violence 24 Hour Hotline at 800-799-SAFE (7233) or
- Crime Victims, 888-343-4414
In an emergency, call 911. Find out more in the Protection from Violence or Abuse section of this website.
How can I get a custody order?
Custody/conservatorship can be ordered by a judge as part of a:
- divorce case,
- suit affecting the parent-child relationship case (SAPCR case),
- paternity case, or
- family violence protective order case.
What forms can I use to ask for a custody order?
TexasLawHelp has toolkits with instructions and do-it-yourself forms that can be used to ask for a custody order.
- Use this toolkit if you and the other parent are married and want a divorce: I need a divorce. We have minor children. The judge will make custody, visitation, child support and medical support orders as part of your divorce.
- Use this toolkit if (1) you and the other parent are not married (or don’t want a divorce), (2) you and the other parent have signed an “Acknowledgment of Paternity” and (3) there are no existing orders about your child: I need a SAPCR (custody) order. I am the child’s parent. The judge will make custody, visitation, child support and medical support orders as part of your SAPCR (custody) order.
- Use this toolkit if (1) you and the other parent are not married and (2) you and the other parent have NOT signed an Acknowledgment of Paternity: I need a paternity order. The judge will make custody, visitation, child support and medical support orders as part of your paternity order.
- Use this toolkit if (1) you are not the child’s parent and (2) there are no court orders about the child already in place: I need a SAPCR (custody) order. I am not the child’s parent.
- Use this toolkit if there is already an existing court order: I need to change a custody, visitation or support order. The judge can change a custody order in a modification case.
If you need help choosing the correct toolkit, use Ask a Question to chat with a law student or lawyer online.
If you need a family violence protective order call the National Domestic Violence 24-Hour Hotline at 800-799-SAFE (7233). They can refer you to help in your community.
NOTE: The TexasLawHelp instructions are written for uncontested cases (agreed or default). If your case is contested, it’s best to hire a lawyer or open a case with the Texas Attorney General Child Support Division.
How can I change a custody order?
If there is already an existing court order, conservatorship (commonly called "custody") can be changed by a judge in a modification case.
What forms can I use to change a custody order?
Get instructions and do-it-yourself modification forms here: I need to change a custody, visitation or support order.
NOTE: The TexasLawHelp instructions are written for uncontested cases (agreed or default). If your case is contested, it’s best to hire a lawyer.
My child’s other parent (or someone else) has filed a custody case. Where can I get an answer form?
TexasLawHelp has do-it-yourself answer forms. Get the forms here: How to File an Answer in a Family Law Case.
Do I need a lawyer to help me with my custody case?
You do not have to have to a lawyer to file or respond to a custody case. However, custody cases can be complicated. It’s a good idea to talk with a lawyer about your situation (even if you decide not to hire one). A lawyer can explain your rights and options.
It’s really important to talk to a lawyer if any of the following are true.
- You are afraid for your or your children’s safety.
- Your case is contested (not agreed).
- The other parent has a lawyer.
- Your child has a disability.
- You are not sure about the identity of the child’s father.
If you need help finding a lawyer, you can:
- Use our Legal Help Finder to search for a lawyer referral service, legal aid office or self-help center in your area.
- Check our Legal Clinic Calendar to learn if there is an upcoming free legal clinic near you.
- Use Ask a Question to chat online with a lawyer or law student.
Can I hire a lawyer just to give me advice?
Yes! You can hire a family law lawyer just to give you legal advice, review your forms, draft a document, or help you prepare for a hearing. You may then be able to handle the other parts of your case yourself. Hiring a lawyer for a limited purpose is called “limited scope representation.”
Can the Office of the Attorney General (OAG) help me get or change a custody order?
Maybe. To learn when the OAG can help and how to apply for services, visit their website: Office of the Attorney General Child Support Division or call 800-252-8014.
Where can I read the law about custody and visitation?
Read the law about custody (conservatorship) and visitation (possession) in Chapter 153 of the Texas Family Code.
Do all conservators have to consent to issuance of a child's passport?
The federal Two-Parent Consent Law requires that both parents consent to the issuance of U.S. passports for children under the age of 16 unless the applying parent or legal guardian can establish that the consent of both parents or legal guardians are not required.
Texas courts can order that a particular parent or legal guardian has the exclusive right to apply for, renew or maintain passports for children. This could give parents the legal authority to show that the consent of the other parent or legal guardian is not required for the issuance of a particular passport.
If a party is declared to be a sole managing conservator and the Court does not otherwise limit the sole managing conservator’s rights with respect to issuance of passports, then the sole managing conservator has the exclusive right to apply for, renew and maintain passports for the children.
The SAPCR custody orders and Final Decrees of Divorce on TexasLawHelp have provisions through which Texas courts can express their decision with respect to which party or parties should have the right to consent with respect to passports for the children involved in the case at hand.
Child Custody & Visitation
This article about child custody was written by Texas RioGrande Legal Aid.
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