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Factors the Family Court Considers for Temporary Orders

Child Protective Services (CPS)

This article lays out some considerations for temporary child custody and visitation orders.

Here, learn about the factors a family court judge considers when making temporary orders about child custody and visitation in Texas. The factors include the best interest of the child and the fit parent presumption. Find out where to research the law on this topic.

This article is a part of Temporary Restraining Orders, Temporary Injunctions, and Temporary Orders in Child Custody Emergencies.

What is temporary joint managing conservatorship?

Texas law does not use the term "custody." Rather, it uses the concept of "conservatorship." That means that the parents—or conservators—are the ones that share decision-making about the child. One conservator decides where the child primarily lives, and the others have visitation (possession and access) periods and may pay child support, medical support, dental support, and insure the child.

As part of a request for temporary orders, a court can name temporary managing conservators and temporary possessory conservators. Texas law says that parents should be named joint managing conservators—usually. 

Joint managing conservatorship means the parents share decision-making about most issues. It does not mean the child’s time is split equally between the parents.

Any time a court makes orders about child custody and visitation, the judge must consider what is in the child's best interest. That applies in temporary orders proceedings too. You will need to argue that temporary orders are in the child’s best interest. In determining what is in the best interest of the child, and with whom the child lives, the Court will look at anything that may have an influence on that child's life. 

Does the court have to make the parent a managing conservator?

The court does not have to make the parent a managing conservator. But it can be hard to persuade a court that a nonparent should be the managing conservator. Under Texas law, a court will presume that a parent of the child should be appointed managing conservator. That concept is called the “parental presumption.” See Texas Family Code 153.131(a). The court will presume that a fit parent acts in the best interest of their child, and they have a fundamental right to make decisions concerning the care, custody, and control of that child.* 

You might be able to persuade the court that a parent should not be the managing conservator—if you can show that doing so would significantly impair the child’s physical health or emotional development. 

If the parent has voluntarily surrendered the child for a period of a year or more to the Texas Department of Family and Protective Services, a child placement agency, or a nonparent, then the court may favor appointing someone besides the parent being a managing conservator. See Texas Family Code 153.373.

The court can also decide not to appoint a parent managing conservator if there has been domestic violence within two years before the custody suit was filed. See Texas Family Code 153.004(a) and Texas Family Code 153.004(b).

*See the case of In re C.J.C. and read Custody Disputes Between a Parent and a Nonparent.

Are there any circumstances where the parent cannot have access to the child?

Yes. There are circumstances where the parent cannot have access to the child. A court may not allow a parent to have access to a child if whom it is shown by a preponderance of the evidence that:

  • There is a history or pattern of committing family violence during the 2-year period before the suit was filed (or while the suit is pending), or

  • The pregnancy was the result of a sexual assault under Texas Penal Code 21.02, 22.011, 22.021, or 25.02.

See Texas Family Code 153.004(d), 153.004(d-1), 153.004(e), and 153.004(f).

Can temporary orders stop someone from leaving the U.S. with the child?

You can show the judge evidence that you are worried that the other parent will leave the country with the child. If the court finds that you have presented credible evidence that the other parent may leave the country with the child, they can put measures in place to try to stop that from happening—like giving only one person the right to control the child’s passport, or naming a nonparent the sole managing conservator of the child. 

See Texas Family Code 153.501 through 153.503 and read Preventing International Child Abduction.

How do I research the law about custody and visitation?

As part of your preparation, you will need to know the law and analyze what facts you need to show the court. You are best served if a lawyer represents you.

But if you have to represent yourself—which is a last resort—you should read:

And talk to a lawyer who practices family law in the court you’re appearing in. See Finding Legal Help.

Again, the main thing the court must consider is what is in the best interest of the child. As to what is in the child’s best interest, the court can consider anything that affects the child’s life.

Read Best Interest of the Child Standard and Texas Family Code 153.002


Where can I read the laws about custody presumptions in Texas?

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