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What Is a Custodial Parent?

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In any Texas divorce that involves minor children, a court cannot grant a final decree of divorce until the judge is satisfied that all of the provisions affecting the children are in the children’s best interest. The divorce decree must address each parent’s rights and obligations regarding the children, including who has the right to determine where the children live. Family law attorneys in Houston often use “custodial parent” to refer to the parent with whom a child resides most of the time, even though this term does not appear in the Texas Family Code. Using this definition of “custodial parent,” the “non-custodial parent” usually has the right to regular visitation with the child, such as on certain weekends and holidays. The following is a guide to how the Texas Family Code determines child custody rights, and who may be considered a “custodial parent.”

What Is Child Custody, Really?

Under Texas law, the term “child custody” describes parents’ rights and obligations regarding their children in divorce cases, and in cases where the parents are not married to one another. Texas uses the term “suit affecting the parent-child relationship” (SAPCR) for any legal proceeding where child custody is at issue.

A “child,” for the purposes of the Texas Family Code, is someone who is under the age of eighteen, and who has not gotten married or been emancipated. A “parent” is the mother or father of a child.

Rights and Duties of Parents in General

Texas provides a general statement of parents’ rights and duties, regardless of whether they are involved in a SAPCR. A parent’s rights include:

  • Physical possession of the child, meaning the child lives with them or has regular visitation;
  • Decision-making regarding the child’s education, health, and “moral and religious training”;
  • Consent to the child’s marriage or enlistment in the Armed Forces; and
  • Receipt of payments for support of the child, as well as use of as the child’s earnings.

Parents have the duty to support the child by providing “clothing, food, shelter, medical and dental care, and education.” This duty continues until an unmarried, unemancipated child turns eighteen or graduates from high school, whichever occurs later.

Rights and Duties of Parents in a Suit Affecting the Parent-Child Relationship

As mentioned earlier, Texas law does not actually use the terms “custodial parent” and “non-custodial parent.” It does, however, have a distinct vocabulary for the rights and duties of parents who are involved in a SAPCR.

The term “conservatorship” refers to parents’ court-ordered rights and duties. These may be exactly the same as the general list provided by the Texas Family Code, or a court may allocate rights and duties differently between parents.

All parents who are subject to a SAPCR order have certain rights, including access to information about the child and consultation with the other parent, doctors, teachers, and school officials regarding the child’s welfare. They also have certain rights and duties whenever the child is in their possession or care.

In most cases, a court must appoint at least one parent in a SAPCR as a “managing conservator.” Both parents could be named managing conservators, in which case they are known as “joint managing conservators.” If a court concludes that it would not be in a child’s best interest for a parent to be named a managing conservator, it could appoint that parent as a “possessory conservator.” The other parent in that scenario would be known as the “sole managing conservator.”

The terms “managing conservator” and “possessory conservator” are not quite equivalent, respectively, to “custodial parent” and “non-custodial parent.” They are close in meaning, though. A “custodial parent” has certain specific rights associated with managing conservatorship.

Rights and Duties of a Custodial Parent

Let us presume that “custodial parent” means the parent with whom a child lives most of the time. In a Texas SAPCR order, this parent is likely to be a managing conservator with the exclusive right “to designate the primary residence of the child.” Most parents granted this right will designate their own residence as the child’s residence. That said, it is possible that a parent could consent to a child living elsewhere, such as with another family member or at a boarding school. This parent has all of the duties described elsewhere in the Texas Family Code regarding support and care of the child.

Texas family courts can set restrictions on a custodial parent’s right to designate a child’s primary residence. The purpose of these restrictions is usually to provide stability for a child, ensuring that they continue at the same school and remain close to family and friends. For example, a SAPCR decree could state that a parent may designate the child’s primary residence within Harris County, within the State of Texas, or within a defined distance from a location like the child’s school or the other parent’s residence.

A parent who is subject to a geographic residence restriction could move the child to a new neighborhood within the permitted area. Moving outside that area would require a court order. Even if the SAPCR decree does not include this kind of restriction, a non-custodial parent could go to court to try to stop the custodial parent from moving too far away. That parent would have to establish that it is in the child’s best interest to remain in the area.

Allocation of Rights and Duties Between Parents

When Texas courts name the parents of a child or children as conservators, they will allocate the rights and duties of parenthood based on the type of conservatorship held by each parent. One area that frequently leads to conflict between parents, besides the right to establish the child’s residence, is the allocation of decision-making authority. Possible allocations of the right to make decisions for the child include:

  1. Joint rights: A court may appoint both parents as joint managing conservators, and require that they make decisions affecting the child’s health, education, and welfare by consensus. If they cannot agree, the status quo remains until they can find a compromise. This is not a good arrangement for all but the most amicable co-parents.
  2. Independent rights: Another less-than-ideal arrangement involves joint managing conservators who can make decisions for the child independently of one another. This could result in a child having two or more doctors, or attending two different schools.
  3. Consultation with the other parent: The allocation that often works best involves one parent having the rights to make certain decisions, either at all times or during their periods of possession of the child, after consulting with the other parent. The other parent might have veto power over some decisions, but not others.
  4. Exclusive to one parent: When one parent is sole managing conservator, they are likely to have the right to make certain decisions without obtaining the other parent’s agreement or input. The other parent, usually named possessory conservator, is still entitled to information about the child.

Stacey Valdez is a board-certified family law attorney whose practice includes Clear Lake and much of the rest of the greater Houston, Texas area. At Stacey Valdez & Associates, our clients and their families are always our top priority. We are committed to helping our clients through difficult disputes over child custody, child support, and visitation rights with compassion and dignity. Please contact us today online, or give us a call at (281) 218-0900 to schedule a confidential consultation to see how we can help you. Your first meeting with us is free in most cases.

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