Dallas Child Custody Lawyer Protect your relationship with your children.

How child custody works in Texas

Texas courts decide custody by one test, the best interest of the child (Texas Family Code § 153.002), starting from a presumption that both parents should share it. Texas law does not use the word "custody." The Family Code speaks of conservatorship, which covers the right to make decisions for a child, and possession and access, which is the schedule of who has the child when.

The starting point is a presumption that naming both parents joint managing conservators is in the child's best interest (Texas Family Code § 153.131). A court can name one parent sole managing conservator instead when joint conservatorship would not serve the child, and it may not name joint managing conservators where there is credible evidence of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent against the other parent, a spouse or a child (§ 153.004).

Joint custody does not mean equal time

Joint managing conservatorship is about shared rights and duties, not a 50/50 calendar. In almost every joint order, one parent still holds the exclusive right to designate the child's primary residence, usually within a geographic area the order sets (§ 153.134). The other parent's time is often set by the standard possession order, explained on the visitation and relocation page.

The same rules apply whether the parents are divorcing or were never married. For unmarried parents, legal fatherhood comes first; see paternity and parental rights.

What decides who gets primary custody

To be named the primary parent in Dallas, you show the court, with evidence, that having the child live mainly with you serves the child's best interest, usually through your caregiving history, a stable home and support for the child's bond with the other parent. When both parents ask to be the primary parent, the judge weighs facts about the child, not a formula. Texas courts often use a list of factors from a 1976 Texas Supreme Court case, Holley v. Adams, together with the factors in Family Code § 153.134. These are the facts that usually carry the most weight:

• Who has done the daily caregiving: school, meals, doctor visits, bedtime, activities.
• Each parent's ability to put the child first and make shared decisions.
• Whether each parent supports a positive relationship with the other parent.
• Stability of each home, the school the child attends and the distance between homes.
• The child's physical, emotional and educational needs, and any safety concerns.
• For a child 12 or older, the child's preference, which the judge hears but is not bound by.

Time spent with the children matters a great deal, because it shows who knows the child's routine and needs. A higher income does not win custody on its own. Money is handled through child support; the court asks whether each parent can provide a stable, safe home and has the time to care for the child.

When safety is the issue

Family violence changes the analysis. The court must consider evidence of abusive physical force or sexual abuse committed within two years before the suit was filed or while it is pending (§ 153.004). Credible evidence of a history of abuse or neglect bars joint managing conservatorship and creates a presumption against unsupervised visits.

Alcohol or drug abuse and untreated mental illness matter when they affect the child's safety or care. A diagnosis alone does not cost a parent custody; the question is how the parent functions as a parent today. Courts can order supervised visits, safe exchange locations, sobriety conditions or counseling, and must keep restrictions no broader than the child's protection requires (§ 153.193).

If you are worried about your child's safety, a custody lawyer can ask the court for temporary orders early in the case, and can help you document the concern so the court can act on it. If a child is in immediate danger, call 911 first.

How John B. Polk helps in a custody case

Protecting your relationship and your time with your children during a divorce starts with a clear temporary schedule early in the case, steady involvement in their daily life, and keeping them out of the conflict. John helps with each of these from the first week. He has practiced family law in Dallas for more than 25 years and represents both mothers and fathers. He is also a family law mediator and, since 2012, a parenting facilitator for Dallas–Fort Worth co-parents, so he sees custody disputes from the attorney's chair and the neutral's chair. He is a father of two.

• He prepares every litigated custody case as if it will go to trial, while exploring settlement.
• He helps you protect your time with your children from the first week, including temporary orders.
• He refers families to therapists, co-parenting counselors and child development professionals when a child needs support.
• For parents who need to communicate better, he can point them to CPiQ, an online co-parenting tool built on parenting-facilitation methods.

Cases that cross state or national lines are a particular focus: John has written and spoken at continuing legal education programs on interstate and international custody. See interstate and foreign orders.

Ways to resolve custody: agreement, mediation, collaborative law or court

If your spouse wants full custody and you disagree, the court decides only if the two of you cannot. Most parents have four routes, and a case can move from one to another.

1. Negotiation between lawyers, leading to an agreed parenting plan the court signs.
2. Mediation, where a neutral mediator helps both sides reach terms. A signed mediated settlement agreement that meets § 153.0071 is binding. More on mediation.
3. Collaborative law, where both parents and their lawyers commit to settle outside court. John is trained in collaborative law; see collaborative law.
4. Court: temporary orders hearings and, if needed, a final trial before a judge or, on some issues, a jury.

A parent who asks for sole custody has to show why joint conservatorship would not serve the child. Disagreeing with the other parent, by itself, is rarely enough.