Child Custody 101

Texas Child Custody Law 101

Texas Child Custody Law is contained in Title 5 Chapters 101-266 of the Texas Family Code. The law applies whether you are married or unmarried, but the court proceedings are different. If you are getting a divorce, your final orders will contain provisions concerning your children. Those provisions dictate both the long term financial and the day-to-day parenting arrangements of your children. While the proceeding for unmarried parents are different, how Texas law defines and determines your relationship with your children is the same.

How does the court determine what happens to my child?


Texas Child Custody law splits up parental rights into two separate parts: conservatorship and possession. Conservatorship means parental decision making. Possession means which parent has the child. Texas courts use the same legal standard to determine what happens to your rights under both conservatorship and possession. This legal standard is called the best interests of the child. In the industry, it’s known as the best interests standard.

Conservatorship and parental decision making

Conservatorship is about parental decision making. It is often associated and confused with the term legal custody. Conservatorship determines who gets to make parenting decisions about your child. Think of decision making (conservatorship) as like being the judge of what happens to your child. It determines who gets to decide whether your son must have surgery. It determines what school your child attends or which sport he plays. Conservatorship even determines the religious upbringing of your child. When both parents must agree about making a parental decision, the parents have joint decision making. Courts call joint decision making joint managing conservatorship. On the other hand, sometimes only one sole parent gets to make parental decisions. As a result, this parent has sole managing conservatorship.

Possession and Custody

Possession means physical custody of the child. These legal terms get tricky. Usually, one parent has more residential time with the children than the other. Hence, this is known as primary custody. Texas refers to this person as the managing conservator. Said again, the managing conservator is the primary parent. The parent who has visitation rights, meaning a parent who sees the child less than 50% of the time, is known as the possessory conservator.

What kind of parenting plan can I have?

Texas provides two basic parenting plans in the statute itself: standard and extended plans. First, the standard possessory order is a generic vanilla parenting plan. On the other hand, extended possessory orders are just standard plans with more time for the non-primary parent. Finally, when someone else drafts a different plan all together, you have a custom custodial possessory order. Judges must enter “findings” into the record in order to order custom parenting plans. Over the years, I’ve seen thousands if not tens of thousands of parenting plans. The standard parenting plan recently provided by the legislature isn’t that bad. It could be a lot worse. I’ve seen it.

What about child support?

There are two legal questions to address on child support: who pays and how much. First, the residential schedule in the parenting plan answers the question on who pays. The parent who has the majority of time with the children is usually the parent who receives support. Thus, the parent who pays is the parent who has less time with the children–usually dad. It doesn’t matter who earns less. The one earning less could be the one paying simply because they don’t see the children that often. However, this is law so, yes, there are exceptions. Let’s start with the biggest: 50/50 parenting plans. 50/50 parenting plans are more convoluted as there are exceptions to the exceptions. As a general guidelines, 50/50 parenting plans usually either have no explicit transfer payment or provides that the one who earns less gets a small amount of support from the other.

Just the basics here – Texas Child Custody Law 101

There’s a whole lot more to custody, possessory law, parenting plans, and child support than discussed here. This is just the basics. If you’d like to learn how a parenting plan or possessory order will affect your children, call us at 214-396-6099 or email us via our website to schedule your consultation.

Eric Engel

by Eric Engel

Eric Engel is a Dallas divorce attorney for clients in the Dallas/Ft. Worth Metroplex. He is the president of Engel Law Firm. For more information on Mr. Engel please visit his bio page or contact our firm at (214) 377-0166.