A parent has many rights and duties with regard to their children, including but not limited to the right to determine where the children will reside and attend school.  In a suit involving children, these rights and duties must be apportioned between the child's parents.  In Texas, there is a presumption that the parents should share the rights and duties of parenthood under a joint custody arrangement.  A child custody decree can provide that the parental rights will be exclusively granted to one parent, that the rights can be independently exercised by both parent, or that the parent can exercise certain rights only with the agreement of the other parent.  Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of the child to each of the joint conservators.  If the parties are unable to agree on the apportionment of parental rights or on an appropriate visitation schedule, the Court may order a social study to be conducted, whereby a neutral investigator will prepare a recommendation for the Court.

In order for children to grow up as healthy individuals, it is important that they have a relationship with both parents and that they have frequent contact with both parents. The Court's order will establish a visitation schedule for the parent who does not have the primary residence of the children. The standard possession order of the Texas Family Code constitutes a presumptive minimum amount of possession for the noncustodial parent. Whenever the parties agree to deviate from this schedule, they may do so.  Divorced parents who are successful at co- parenting their children will learn to be flexible with each other as scheduling conflicts arise, and will invite the child's other parent to be active in the child's activities beyond the strictures of the Court ordered visitation schedule.  After the entry of the divorce, if your circumstances change, it is possible to ask the court to modify the custody and visitation orders.

Following are several provisions of the Texas Family Code related to child custody and visitation. These statutes are the presumptions that the Court will normally follow unless the parties provide evidence that the presumptions would not be appropriate for a particular case.  Under Texas law, the Court has broad discretion to fashion a child custody and visitation order that the Judge believes is in the best interest of the children.  It is important for parties in a family law case to consult with an experienced family law attorney to determine whether it is likely that the Judge would deviate from the Family Code presumptions in your situation.

Presumption That Parent to Be Appointed Managing Conservator

(a) Unless the Court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed the sole managing conservator or both parents shall be appointed as Joint Managing Conservators of the child.

(b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of a child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.

Court-ordered Joint Conservatorship 

(a) If a written agreement of the parents is not filed with the court, the court may render an order appointing the parents joint managing conservators only if the appointment is in the best interest of the child, considering the following factors:

     (1) whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators;

     (2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest;

     (3) whether each parent can encourage and accept a positive relationship between the child and the other parent;

     (4) whether both parents participated in child rearing before the filing of the suit; 

     (5) the geographical proximity of the parents' residences; 

     (6) if the child is 12 years of age or older, the child's preference, if any, regarding the appointment of joint managing conservators; and

     (7) any other relevant factor.

(b) In rendering an order appointing joint managing conservators, the court shall:

     (1) designate the conservator who has the exclusive right to determine the primary residence of the child and: 

          (A) establish, until modified by further order, a geographic area within which the conservator shall maintain the child's primary residence; or

          (B) specify that the conservator may determine the child's primary residence without regard to geographic location; 

     (2) specify the rights and duties of each parent regarding the child's physical care, support, and education; 

     (3) include provisions to minimize disruption of the child's education, daily routine, and association with friends; 

     (4) allocate between the parents, independently, jointly, or exclusively, all of the remaining rights and duties of a parent as provided by Chapter 151; and 

     (5) if feasible, recommend that the parties use an alternative dispute resolution method before requesting enforcement or modification of the terms and conditions of the joint conservatorship through litigation, except in an emergency.

Order for Family Counseling

(a) If the court finds at the time of a hearing that the parties have a history of conflict in resolving an issue of conservatorship or possession of or access to the child, the court may order a party to: 

     (1) participate in counseling with a mental health professional . . . ; and 

     (2) pay the cost of counseling.