Wednesday, August 1, 2012

What Do Texas Courts Consider When Determining “Primary Custody”?


As noted in a previous blog, the term “primary custody” is misleading in Texas.  The closest standard in our state is to determine which parent has the exclusive right to designate the child’s primary residence, since parents are presumed to have joint/equal parental rights and the standard possession order gives each parent an almost equal amount of possession/custodial time. 

When determining whether a parent will be appointed as a joint managing conservator (“JMC”), Texas courts look to see if there has been a history of family violence by one parent toward other members of the household.  If the court finds one parent has committed family violence, or has a history or pattern of child abuse/neglect, physical or sexual abuse, or sexual assault, that parent may not be appointed as a JMC, and the court may also limit or restrict that parent’s periods of possession/custodial time.  See Tex. Family Code § 153.004. 

Other factors include:

- The parent’s ability to give first priority to the child’s welfare;
- The parent’s ability to reach shared decisions in the child’s best interest;
- The parent’s ability to encourage and accept a positive relationship between the child and the other parent;
- The parent’s role/participation in the child’s rearing;
 - Whether appointment of the parent as JMC will benefit the child’s physical, psychological and emotional needs and development; and
- Where the parents live in relation to one another.
See Tex. Family Code § 153.134.

If one parent has clearly been uninvolved in caring for the child’s basic needs and upbringing, has not been active in the child’s daily activities and schooling, disparages the other parent or actively discourages the child from a relationship with the other parent, or abuses alcohol or other substances (legal or illegal), has frequent emotional outbursts or a demonstrated lack of self-control, or otherwise shows an inability to exercise good parental judgment, the court is less likely to appoint that parent as a JMC, and will instead consider granting “primary custody” to the other parent.

Article by Cynthia W. Veidt, Attorney