Texas does not use the word “custody”

The Texas Family Code speaks in terms of conservatorship — who holds the rights and duties of a parent — and possession and access — when each parent physically has the child. The distinction matters, because parents frequently negotiate hard over a label while conceding the rights that actually control schooling, medical decisions, and where the child lives.

Davis Law, P.C. handles original custody determinations, modifications, relocation disputes, enforcement, and nonparent cases in the district courts and county courts at law of Hidalgo County.

Joint managing conservatorship is the starting point

Section 153.131 establishes a rebuttable presumption that appointing the parents as joint managing conservators is in the child’s best interest. It is rebutted by evidence of a history of family violence. Separately, § 153.004(b) prohibits appointing 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.

Joint managing conservatorship does not mean equal time. It means both parents share the rights and duties listed in the decree. What usually matters most is which parent holds the exclusive right to designate the child’s primary residence, and whether that right is subject to a geographic restriction — typically Hidalgo County and contiguous counties. That single provision governs schooling, daily routine, and whether the other parent can move away with the child.

Sole managing conservatorship is awarded where the evidence shows one parent should hold those rights alone — commonly in cases involving family violence, substance abuse, abandonment, or a parent’s sustained absence from the child’s life.

Possession schedules

The standard possession order is the statutory default for a child three years or older. For parents who live 50 miles or less apart, the Family Code now applies the expanded schedule by default: since September 1, 2021, § 153.3171 directs the court to alter the standard order as though the conservator had made the expanded elections — extending Thursday and weekend periods — unless the conservator declines in writing or on the record, the court finds the expanded times are not in the child’s best interest, or the schedule is unworkable given the parties’ circumstances. Where parents live farther apart, § 153.317 governs the elections available.

Parents are free to agree to something else entirely, including week-on/week-off or a 2-2-3 rotation, and courts routinely approve agreed schedules that depart from the statute. Children under three are handled separately, with a stepped schedule that expands as the child ages.

Best interest

Texas courts decide conservatorship and possession by the best interest of the child. The factors courts apply come from Holley v. Adams, 544 S.W.2d 367 (Tex. 1976): the child’s desires; the child’s present and future emotional and physical needs; any emotional or physical danger to the child; the parenting abilities of those seeking custody; the programs available to assist them; each party’s plans for the child; the stability of the home; acts or omissions indicating an improper parent-child relationship; and any excuse for those acts or omissions.

A child 12 years of age or older may have a say. Under § 153.009, on the application of a party, an amicus attorney, or an attorney ad litem, the court shall interview a child 12 or older in chambers regarding conservatorship and primary residence. The court may interview a younger child. The interview is not a vote — the judge still decides — but it is frequently influential, and a record must be made when the child is 12 or older.

Modifying an existing order

Modification is governed by § 156.101. The court may modify conservatorship, possession, or access if modification is in the child’s best interest and one of three things is true:

1. The circumstances of the child, a conservator, or another party affected by the order have materially and substantially changed since the earlier order or the mediated settlement agreement on which it was based;
2. The child is at least 12 years old and has expressed to the court in chambers a preference as to who should have the exclusive right to designate the primary residence; or
3. The conservator with that exclusive right has voluntarily relinquished primary care and possession of the child to another person for at least six months.

“Material and substantial change” is fact-intensive. A parent’s remarriage, a job relocation, a change in work schedule, a deterioration in the child’s grades or behavior, a new criminal charge, or the onset of a substance abuse problem can all qualify. Simple dissatisfaction with the existing order does not.

There is an additional hurdle within the first year. A motion filed within one year of the prior order seeking to change the person with the exclusive right to designate the primary residence must be supported by an affidavit alleging specified facts — that the child’s present environment may endanger the child’s physical health or significantly impair emotional development, or that the designated conservator has voluntarily relinquished primary care and the modification is in the child’s best interest, or that the designated conservator is the movant and the modification is in the child’s best interest. Without a sufficient affidavit, the court denies the motion without a hearing.

Relocation

Relocation cases turn on the geographic restriction in the existing order. A parent who wants to move outside the restricted area must either obtain the other parent’s agreement or persuade the court to lift the restriction. A parent opposing the move seeks to enforce it. Courts weigh the reason for the move, the effect on the child’s relationship with the other parent, the educational and economic opportunities involved, and whether a workable long-distance possession schedule exists.

These cases are often urgent — driven by a job offer or a school enrollment deadline — and are frequently resolved on temporary orders before a final hearing is possible.

Nonparent and grandparent cases

A person other than a parent can, in defined circumstances, seek conservatorship or possession. Standing is governed by §§ 102.003 and 102.004, and typically requires actual care, control, and possession of the child for at least six months, or that the child’s present circumstances significantly impair the child’s physical health or emotional development. Grandparents seeking possession or access face an additional statutory burden and must overcome the constitutional presumption that a fit parent acts in the child’s best interest.

These are difficult cases with a high burden, and they are won or lost on the specific evidence of the child’s circumstances. Davis Law, P.C. handles both intervention on behalf of grandparents and defense of parents against nonparent claims.

Enforcement

When a parent withholds possession, an enforcement action under Chapter 157 seeks contempt, make-up possession, and attorney’s fees. The motion must specify each violation with the date, time, and place, and the underlying order must be clear enough to be enforceable by contempt — a common defect in orders drafted without that standard in mind.