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Who Usually Gets Custody of a Child?

If you are a parent going through a divorce you know there are three main goals from a divorce: the division of property, assets, or debts; child custody; and child support. Of these three many people are concerned with the custody battle that is to come. Most parents believe they are the better parent and fit for their child, and not to mention the parent with custody is typically awarded child support.

In this blog we will explain what factors go into considering custody and how that will be decided. However, to begin you will need to understand just what exactly custody is to know what is best for the child.

What does it mean to have “Custody?”

Two main terms to familiarize yourself with when thinking about child custody is conservatorship and possession and access. Most people will use the terms interchangeably, but it is important to know these are not the same and you should be aware of what these terms mean.


To begin, conservatorship is best described as what rights and duties a parent will have regarding their children. Rights and duties are reserved for responsible parents to make life decisions for the child. Examples of rights can include having the right to be made aware of any of your child’s doctor’s appointment, and the right to attend. Lastly, there are many duties a parent has in making choices for the child and those duties can be about schooling, medical decisions, psychiatric, etc.

There are two types of conservatorship: sole managing and joint conservatorship. In sole custody only one parent will have the rights and duties pertaining to a child’s life decisions. These rights and duties will be share in a joint managing conservatorship. It is also important to know that if you are in a sole managing conservatorship this will not affect what possession and access that may be ordered.

Possession and Access

On the other hand, most people would associate the term custody with what is known as possession and access. This is the legal term referring to when a parent will exercise physical custody of the child or when they will be able to visit their child. In Texas, there are two main statutory schedules for possession and access: standard and extended standard. These schedules will determine how much time each parent will have with the child. We will not discuss these schedules in detail, but rather in another blog as we focus on how custody is awarded.

Now that you understand what exactly custody consists of many people want to know: who is going to get custody of the child? While not all parents will agree on who the child should live with, it is helpful to know that this battle will go to a Texas Family Law court where it will be examined and ruled on a case-by-case basis. These rulings can very widely because every family will have a unique set of circumstances to be considered.

Best Interest of the Child

To begin with determining how a court will rule, you should be aware of the standard courts will base their decisions on. This standard is known as the “Best Interest of the Child” standard. Although self-explanatory, this means exactly that. Regardless of what each parent wants or how hard they fight the judge will only base his decision on what is in the best interest of the child.

After all no children was born into this world expecting to grow up in a broken home, and their specific needs, wants, and wishes should be put into consideration when there is a decision this huge that can affect them for the rest of their life.

Texas is NOT a “Mother State” …Kinda

Contrary to popular belief, Texas is NOT specifically a “Mother State.” This means that either a mother or father of a child can be awarded custody of their child if it is in the best interest of the child. However, this only pertains to parents that are either officially married or common law married.

Things are a bit different when a mother is not married. In Texas, the mother will assume sole custody of the child and have the rights and duties to make all legal decisions for the child. A father cannot fight for custody of his child until his paternity has been established.

Factors Considered in Awarding Custody

The Texas case of Holley v. Adams helped to establish what is known as the “best interest factors” that are frequently considered when deciding how custody should be awarded. Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). Although these are just frequently considered factors, each unique set of circumstances will be considered on their case-by-case basis. Nonetheless, this landmark case has helped set a guideline for what a court should consider when determining a child’s best interest.

These “Holley Factors” are:

  1. Desires of the child

Most children cannot make life decisions for themselves, however if you have a child over the age of 12, they can interview with the judge and express their wishes on things like custody. Either party will have to motion for this interview, and this will only be considered by the judge as the child will not automatically get to decide where they will live.

  1. Emotional and physical needs of the child, now and in the future

A kid’s childhood is one of the most important times in their life for their development and judge will consider that in hopes of satisfying those needs as close to how they were pre-divorce.

  1. Emotional and physical dangers to a child, now and in the future

A judge will want to place a child in a healthy living environment and will assess any short-term or potential dangers to a child. Also, if a parent has a criminal record, particularly in abuse, these are greatly considered when deciding custody.

  1. Parenting abilities of the parent or individual seeking custody

It would not make much sense for a judge to give a parent custody who has not been actively involved in the child’s daily physical and emotional needs. It also would not make sense to give a child to a parent who is constantly absent for things like work or travel. Interactions with your child will also be weighed. If these needs were equally balanced, a court will likely want to keep that split balance.

  1. Programs to help custodial parents foster the best interest of the child

If a child is very active in their community through things like sports, church, or other civic programs, a court will use that evidence to help weigh what parent should get custody. A parent who is not able to keep their child active in the community would be considered because it’s important for healthy social development.

  1. Plans for the child by the parents, individuals, or agency seeking custody

Parents in a contested custody battle are urged to attempt to work out a parenting plan that works for both the parents and children involved. A court will keep in mind which parent was willing to cooperate to reach a result versus a parent who is unwilling to cooperate.

  1. Stability in the home and proposed placement location

Developing routines and a stable home environment is important for a child’s health. The family home and who is awarded that home will be taken into consideration when awarding custody. Most judges will not want to disrupt the balance a child has grown into in their life. Change can be an incredible difficult concept for a child to grasp and a court will promote continuity of those routines and patterns.

  1. Acts or omissions by a parent indicating an improper parent-child relationship

Abuse and neglect of a child’s needs will be greatly taken into consideration when deciding custody. It certainly would not be in a child’s best interest to be with a parent who harms them emotionally or physically.

  1. Excuses for the acts or omissions of a parent seeking custody

If a parent has a disability or temporary condition, those temporary ailments will be considered by the judge in awarding custody. Any other excuse for your actions toward your child will always be considered.

Factors that WON’T Matter

Did you know that before 1972 Texas was mainly considered a “Mother” state, but this is no longer the case after the Equal Rights Amendment to the Texas Constitution was signed.

As a result of this courts will not consider these factors when making their decision on custody, and they include:

  1. Infidelity
  2. Marital Status
  3. Gender
  4. Racial Issues
  5. Religion
Keeping these aforementioned factors in mind, it can help you grasp the idea of how custody will be decided in your family law case. Remember these decisions will always be made with the best interests of your child in mind. If you have any further questions about child custody please call our office to schedule a FREE 30-minute consultation with one of our many experienced family law attorneys.

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