Parents Rights When No Custody Orders Exist
Child Custody & Visitation
What rights and duties do parents have when there is not a court order?
Under Texas law, parents have certain rights and duties to their children unless those rights and duties are changed by a court order. These include the rights and duties to:
- Have physical possession of the child
- Choose the residence of the child
- Direct the moral or religious training of the child
- Have control of the child (in other words, make sure that they go to school, do not break the law, etc.)
- Protect the child from abuse, neglect, and other types of harm
- Reasonably discipline the child
- Support the child (providing them with food, clothing, shelter, medical and dental care, and education)
- Consent to medical care for the child
A complete list of parents' rights and duties can be found in Texas Family Code 151.001.
What are my visitation rights if I do not have a court order for my child?
When there is no court order, there are no rules for visitation, and both parents have equal rights to the child. The law expects that the parents will work together to parent the child by agreement according to the child’s best interests.
If one parent keeps a child away from the other parent when there is not a court order, there is no way to force visitation to happen. Without a court order, neither parent can file an enforcement action. An enforcement action cannot be used to enforce an informal agreement between the parents.
Because of the potential problems, many families choose to get a court order so that there are clear rules that each parent has to follow. Read more about possession and visitation orders.
Note: Only a legal parent has rights to a child when there are no court orders. Determining the legal father of a child can be more complex than determining the legal mother. Legal paternity can be established by presumption (when the parents are married), by filing an acknowledgment of paternity, or by court order.
What about child support when there is no court order?
Like visitation, when there is no court order, there are no rules governing child support, how much it should be, or how often it should be paid. Even if parties agree on the amount, there is no way to enforce an informal child support agreement.
However, if a parent does not pay any support for the child (and does not live with the child), that parent may be ordered to pay “retroactive” child support if the other parent later seeks a court order. Having a court order for child support (and paying through the State Disbursement Unit) protects both parents because it can provide an enforcement path as well as provide an official record of payments that have been made if there is a dispute.
Read more about child support orders.
What does a parent’s duty to protect their child mean?
A parent’s duty to protect their child means they must take steps to protect their child from harm. Of course, a parent should never physically, emotionally, or sexually abuse a child, but a parent’s duty to protect also means that they must provide proper supervision based on the child’s age, maturity, and any special needs.
A parent is not being protective if they put their child in a situation (or fail to remove their child from a situation) that they should know is unsafe, and the child is injured or harmed. For example, a parent who leaves their toddler with someone drunk and unable to supervise the child or parent who continues to live with a partner who is physically abusive to the parent or the child.
If a parent does not protect their child, CPS could get involved, and the parent’s failure to protect the child could be used against them in court. In the most extreme cases, a parent’s rights to their child could be terminated.
The duty to protect often requires a parent to take protective action if they know a child has been hurt. This may include immediately removing the child from the situation and reporting the situation to the appropriate authorities, such as law enforcement, CPS, or the court.
I have safety concerns about the other parent and there is no court order. What should I do?
If you believe that the other parent is a danger to your child, there are several options:
- Request a court order. Sometimes the best way to protect a child is to request a court order through a Suit Affecting the Parent-Child Relationship (SAPCR). SAPCR orders can be tailored to the child’s best interests and the specific situation. For example, in situations where there is a concern for the child’s safety, a court order could require the other parent’s visits to be supervised or in a public place, could allow you to get a drug test from the other parent before visits, or prohibit the other parent from driving with the child in the car.
To get orders with these limitations, you must have evidence to convince a judge that these requirements are in the child's best interest. A judge will not likely grant supervised visitation or no visitation for a parent unless there is clear evidence of a danger to the child. Texas law presumes that parents should have generous visitation with their child unless it is unsafe to do so.
You can file a SAPCR petition on your own or with the help of an attorney. If you choose to file on your own, you can use the Custody Order (SAPCR) guide, which has the needed forms and instructions.
It is also possible to get a court order through the Office of the Attorney General’s Child Support division. But this option is not a quick process, and the OAG’s office cannot help in an emergency.
- Request a TRO. A Temporary Restraining Order (TRO) can be used to protect a child in an emergency when there is risk of immediate harm to the child. A TRO can be filed with an original SAPCR petition (or other petition involving the child, such as a divorce). It can be granted by a judge the same day it is filed, even without prior notice to the other parent, and it is meant to keep the child safe for a short time, usually around two weeks, before a hearing on temporary conservatorship and visitation orders can be held in the suit.
Read more about TROs and Temporary Orders in Child Custody Emergencies.
- Request a Protective Order. A protective order is used in very dangerous situations where a child has been a victim of domestic violence, physical abuse, or sexual abuse. If a child has been a victim of family violence, any adult family member or household member may file on behalf of the child for a Protective Order. When the child has been a victim of certain crimes, a protective order can be requested by any adult on behalf of a child. A protective order is filed by itself. A protective order can also be used to protect an adult—including the other parent—who has been a victim of domestic violence, stalking, or sexual assault.
Read more on Protective Orders.
- Do nothing. When there is no court order, there is no way for the other parent to force you to give them the child for a visit. If the child is with you and the other parent has no way to take the child (such as by picking them up at school), an option may be to do nothing. If you tried to get a court order, it is possible that the other parent may get the court-ordered right to visitation. However, this can be a risky decision. Also, doing nothing does not prevent the other parent from going to court to request a court order.
- Report to CPS. If you believe that a child is being abused or neglected by the other parent or by any other caretaker, you can make a report to CPS. Child Protective Investigations is the part of the CPS agency that investigates allegations of child abuse and neglect. They will usually only investigate if they feel that a child has been abused or neglected or is at risk of harm. If a child is in a safe, protective home and the unsafe parent does not have access to the child, Child Protective Investigations may choose not to take any further action. However, if the child is in the care of someone they believe is unsafe, Child Protective Investigations may take steps to ensure that the child is safe.
Read more about Reporting Child Abuse or Neglect and Child Protective Investigations.
- Call the police. If you believe that a crime is being committed or that a child is at risk of immediate harm, you can call 911 and ask police to respond to the criminal situation. You can also ask police to conduct a well-check. For non-emergency situations, you can call 311 instead. If no crime is being committed and a child is not in immediate danger, law enforcement will not make decisions about who a child should go with and will often say to take the case to family court. If a child seems to be in danger, police will often also make a report to CPS.
I need a custody order. I am the child's parent (SAPCR).
Child Custody & Visitation
Parents' Rights to Participate in Their Children's EducationThis article answers questions about parents' rights to participate in their children's education and school activities.
Child Visitation and Possession OrdersLearn about Texas visitation orders, also called possession orders.
Settling Custody, Visitation, and Support Out of CourtThis article explores alternative dispute resolution for Suits Affecting the Parent-Child Relationship.