Types of Custody in a Texas Divorce

The question of "Who gets custody of the kids?" is one of the most difficult decisions for parents and their children, when parents separate. Custody and visitation are the legal terms for court decisions about how the child will spend his/her time between parents (or others). Custody and visitation are never considered to be final. As situations change, parents can come back to court to request changes.

In Texas, the law does not favor either the mother or father. The law looks at the relationship of each parent with the child. While grandparents and others may seek custody, there is a "presumption" in favor of the natural parents. This means that the court is more likely to favor the natural parents.

This section is designed to give you general information on how courts decide custody and visitation rights in Texas.

Types of Custody: What does the word "custody" mean?

Temporary Custody

De facto" (means "in fact") custody refers to who actually has custody of the child at this time. This can be different from "court ordered custody". In order to formalize custody before you begin litigation, you will need to file for temporary custody.  Temporary custody will be based on the "best interests" of the child standard. It is not an "initial" award of custody. Instead it is temporary custody while you wait for the court to hold a hearing.

Sole Custody

Custody is made up of: legal custody and physical custody. A person with legal custody has the right to make long range plans and decisions for the education, religious training, discipline, non-emergency medical care and other matters of major significance concerning the child's welfare. A person with physical custody has the child living primarily with them and they have the right to make decisions as to the child's everyday needs. Sole Custody is when both legal and physical custody are given to one parent. The child has only one primary residence.

Split Custody

Split custody is easiest to describe in a situation where there are two children and each parent obtains full physical custody over one child. Some of the considerations that may bring about this result are age of the children and child preference.

Joint Custody

Joint Custody is actually broken down into three categories: Joint Legal, Shared Physical, and Combination.

  • Joint Legal custody is where the parents share care and control of the upbringing of the child, but the child has only one primary residence.
  • In Shared Physical Custody the child has two residences, spending at least 35% of their time with the other parent.
  • Additionally, you can make your own special joint custody agreement that is any combination of Shared Physical and Joint Legal Custody. One example of this is when there is one residence for the child and the parents live with the child there on a rotating basis.

The court looks very closely at Joint Custody agreements. The most important factor to Joint Legal Custody to Shared Physical Custody is the ability of the parents to talk about and reach joint decisions that affect the child's welfare. If you are constantly fighting over what religion or what school, the court may strike down your agreement.

Other factors include:

  • willingness to share custody;
  • fitness;
  • child's relationships with parents;
  • child's preference;
  • ability to stabilize child's school and social life;
  • closeness to parent's homes (primarily a factor during the school year);
  • employment considerations (e.g. long hours, extensive travel, etc.);
  • age and number of children;
  • financial status;
  • benefit to parent.

Additionally, the sincerity of the parties involved is important. The court will want to make sure that joint custody isn't being traded for concessions on other points. Another consideration is whether the grant of joint custody will affect any assistance programs. Currently, Welfare and Medical Assistance are affected based on the award of Joint Legal Custody. Be sure to check with your contact at any social service agencies before entering into an agreement or you may be jeopardizing your benefits. This list is not meant to be complete and the court will hear anything that they believe to be relevant.

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