In Texas, custody agreements and parenting plans address the rights and duties of the parents in relation to their child(ren) and include orders for conservatorship (custody), possession and access (visitation), and child support (which includes health insurance and medical support). The parenting plan becomes legally enforceable once a judge incorporates the plan into a court order. This comprehensive guide written by an experienced child custody attorney will help you navigate the details.
Information required in a Texas custody agreement
Your custody agreement should include:
- the names and birth dates of the children,
- designate conservatorship status for each parent,
- describe how decision-making rights will be shared,
- state which parent will have the right to designate the child’s primary residence or whether it will be neutral,
- state the geographic location that the child will live in,
- describe a detailed visitation schedule that includes specific beginning and end times,
- set out the amount of child support to be paid and who will pay it,
- explain how health insurance premiums and medical expenses will be paid, and
- include any other relevant information you want to detail and enforce.
Below are the key considerations that should be addressed in a child custody agreement in Texas, as suggested by a child custody lawyer.
Child Custody in Texas
Conservatorship describes the legal rights and responsibilities of a parent. Non-lawyers often refer to this relationship with a child as “custody”.
There are three types of conservators: Joint Managing Conservator (most common), Sole Managing Conservator, and possessory conservator.
Joint Managing Conservators (JMC) share decision-making about most issues. JMC is the presumed type of category for most parents. Generally, one parent has the exclusive right to decide where the child lives, usually within a specified geographic area, and this parent is referred to as the “custodial parent”. JMC does NOT mean they split time equally. Time is addressed with a possession order (i.e., visitation schedule).
Sole Managing Conservators (SMC) have the exclusive right to make most, if not all, of the decisions about the child. A judge would need a good reason to name one parent as SMC, such as family violence, child abuse, alcohol or drug abuse, or absence of a parent.
Possessory Conservators (PC) are the non-SMC parent. A PC still has the rights of a parent, such as the right to receive information about the child, but they do not usually have the authority to make decisions for the child.
Child Custody Factors in Texas
When determining a custody arrangement to serve the child’s best interest, Texas courts generally consider these factors:
- The child’s age and physical, emotional, and developmental needs
- The preferences of the parents and the child (if over 12 years old)
- Which parent has been the primary caretaker
- The ability of each parent to handle parental responsibilities
- Whether the child has siblings or close relationships with other relatives
- Other people living in the home with the child
- The magnitude, frequency, and circumstances of the harm to the child
- Whether the child has been the victim of repeated harm
- Whether the child is fearful of living in or returning to the child’s home
- The results of psychiatric, psychological, or developmental evaluations
- Whether there is a history of abusive or assaultive conduct by the child’s family or others
- Whether there is a history of substance abuse by the child’s family or others
- Whether the child’s family demonstrates adequate parenting skills, such as providing adequate health care, nurturance for the child’s development, supervision for safety, protection from repeated exposure to violence, and more.
Primary Parent in Joint Custody Agreements
Primary Residence
Most courts in Texas will limit the primary residence of a child to a specific geographic area in order to ensure close and continuing contact between the parents and the child. The most common geographic area is the county in which you filed and its surrounding counties.
Generally, one parent will have the exclusive right to decide the primary residence of the child. That means that parent must ensure that the child lives within those geographic boundaries. This is common with a standard possession schedule, or a schedule where one parent has more time than the other parent.
In some cases, parents agree that neither one will have the right to designate the child’s primary residence. This is common with 50/50 schedules. In those cases, the parents decide together on the geographic area, which is often more limited. Common examples include the child’s school district or a certain mileage from a major landmark.
In few instances, there is no geographic restriction. This is common when one parent is Sole Managing Conservator, or if the parents agree.
Decision-making
Under Texas law, parents have rights and duties to their children regardless of whether a court order exists. These are things like the rights to receive information about the child, to direct moral training, to have physical possession, to protect them from harm, to reasonably discipline, and to consent to medical care. A complete list of parents’ rights and duties can be found in Texas Family Code section 151.001.
There are a number of decision-making rights that can be allocated to the parents as well. These rights can be exclusive to one parent, by agreement of both parents, or independent to each parent. These rights are listed below.
| Right | Exclusive to Mother | Exclusive to Father | By agreement | Independent |
| Right to decide child’s primary residence | ||||
| Right to consent to invasive medical and dental procedures | ||||
| Right to consent to psychiatric and psychological treatment | ||||
| Right to receive child support | ||||
| Right to represent child in legal actions and make legal decisions | ||||
| Right to consent to underage marriage or enlistment in the armed forces | ||||
| Right to make decisions regarding child’s education | ||||
| Right to the earnings of child | ||||
| Right to act as the child’s agent | ||||
| Right to apply for, renew, maintain child’s passport | ||||
| Duty to manage child’s estate from joint property |
Tie-Breakers
With some rights, if by agreement, the parents may want “tie breakers”. A tie breaker is optional and may complicate things or pull in a third party that does not want to get involved in your dispute. If you think you and the other parent can reach agreements and co-parent well, you may not want a tie breaker.
Custodial Parent for School Purposes
In general, if the parents are JMC and one parent is the “primary/custodial parent”, then that parent will have the right to enroll the children in the school district in which they reside by default. As such, it is not necessary to address school enrollment in the Final Decree or custody agreement.
However, some parents want to spell out details of school enrollment. For example, if the child attends private school, or the parties want to select a school district that is not associated with the custodial parent’s address. In those situations, the parents should discuss terms such as who pays tuition and what conditions should be met for such enrollment.
Managing the Child’s Accounts
If the child owns property or the parents have set up accounts, trusts, or other property on behalf of the child, then the parents should agree on who will own or manage the property and whether contributions to the property should continue.
Visitation Schedules in Texas Child Custody Agreements
Visitation schedules should be written out and become legal in a possession order, which states when each parent has the right to time with the child. There are several types of visitation schedules and possession orders in Texas: Standard Possession, Modified Possession, Possession for Children Under Three Years of Age, and Supervised Possession.
The most common types of possession schedules for custody agreements are Standard Possession and Modified Possession. In Texas, the parents are free to agree to whatever schedule they would like. But it is important to have a written schedule in place and in a court order in case the parents do not agree. The possession order can contain a provision that gives you flexibility to modify the schedule whenever you need to, but there should be a default schedule in writing for when you cannot agree.
Supervised possession is for situations when a parent’s visitation must be supervised. There is no standard schedule for children under the age of three years, and these schedules are often highly customized for each case depending on things like the child’s developmental needs and the ability of each parent to take care of the child. For teenagers, the written default is often the standard possession order but the parents can work with the child to determine what works best.
Holidays
The standard possession schedule in Texas addresses the following holidays: Spring Break, Mother’s Day, Father’s Day, summer vacation, Winter Break (Christmas Break), Monday and Friday holidays, and the child’s birthday.
The following additional holidays and provisions are not generally included in the standard possession order. These are optional provisions, and if you want to include them, then you must request to add them.
- Religious holidays (other than Christmas)
- Halloween
- Parents’ birthdays
Pickups and Drop Offs
For visitation exchanges, consider how you would like to handle pickups and drop offs for visitations. The general preference is for exchanges to take place at the child’s school. But for exchanges that will not be at school, you can choose:
- Parent A picks up and returns to Parent B’s residence every time
- Each parent picks up at the start of their visitation from the other parent’s residence
- Each parent drops off at the end of their visitation to the other parent’s residence
Right of First Refusal in Custody Agreements
When a parent is unable to provide care for the child for an extended period of time, like an overnight or part of a weekend, then that parent will notify the other parent. The other parent will have the option to care for the child while the notifying parent is away or unable to care for the child but will return the child once the notifying parent is able to care for the child again if it’s still the notifying parent’s visitation time. This is an optional provision and is usually implemented due to work schedules that involve business trips.
Morality Clause in Custody Agreements
No paramours will be allowed to spend the night while the children are at that parent’s house. This no longer applies if the parent marries the paramour. You can put a cap on this as well. For example, no one who the parent has been dating for 6 months or less can spend the night but if they’ve been dating more than 6 months, then they can spend the night. This is an optional provision and many courts dislike including them in custody orders unless there is good reason to include them.
Passports and International Travel
Consider who will maintain possession of the children’s passports:
- Mother maintains them and must provide to Father upon request, Father returns it after trip
- Father maintains them and must provide to Mother upon request, Mother returns it after trip
- Each parent maintains the passport until the other parent needs it, switching as needed
In addition, you can include standard provisions about notifying the other parent about international travel, such as flight information and where the child will be staying, as well as notifying the parent about applications and renewals.
For domestic travel, you can include similar language in your parenting plan, but it is generally not included because each parent has a right to travel with the child while in their possession without interference from the other parent.
What is child support in Texas?
Child support is money a parent pays to help the other parent with the cost of raising a child. This includes costs like food, housing, clothing, school supplies, daycare, and extracurricular activities. Child support is NOT intended to support lifestyle.
A judge can order support to begin once a court order is signed going forward. Sometimes, a court will also order retroactive child support. Retroactive child support is support that should have been paid from a certain date retroactively.
In most custody arrangements, the non-custodial parent (i.e., parent with less time) will pay child support to the parent with more time. Child lasts until the child turns 18 years or graduates from high school, whichever happens later.
In addition to child support, the non-custodial parent will also provide health insurance for the child or reimburse the custodial parent for health insurance premiums if they are providing coverage for the child. This also includes dental insurance.
There is a method used to calculate child support in Texas. To calculate child support, you will need the paying parent’s income information and visit the Texas Office of the Attorney General’s Child Support Calculator.
If no income information is available, a parent or child are disabled and receive disability benefits or veteran’s benefits, there is self-employment income, or the paying parent is unemployed/underemployed/in jail, consult with an attorney about your options. Even if the parent is not earning a traditional income, they are still obligated to pay child support.
If you and the other parent have agreed that neither of you will pay child support, you should speak with an attorney about your options. A court may not grant such an order, even if you both agree and/or you have a 50-50 arrangement. An attorney can help you understand the challenges and the best way to structure your agreement so that the court approves it.
Child support payments usually go through the Office of the Attorney General and can be automatically deducted from a paycheck, but the parents can also agree that payments will go directly to the receiving parent. If you want the child support to be automatically deducted from the parent’s paycheck, then you will need a Wage Withholding Order in addition to the court order with your custody agreement.
Some parents agree to split other child related expenses that child support may not cover, such as educational expenses like tuition, extracurricular activities, daycare, summer camps, and cars for the children. While these extra expenses may be included in your custody agreement, you should consult with an attorney about how best to incorporate them into the order or contract.
Paternity Test for Child Support in Custody
If there is doubt about who is the child’s father, a paternity test and DNA testing may be needed to establish child support and custody rights. A court can order the test or the parents can submit to testing voluntarily. The test generally involves a cheek swab of both the father and the child, and it can be done quickly at a clinic with minimal disruption to the child, or at a child support office or in court. Results are usually revealed 2-6 weeks later. If the test shows a 99% or greater probability of paternity, then the man is considered the father of the child.
However, testing is not enough to establish paternity. Once the test is done, the parents will still need to obtain a court order confirming the results and declaring the man as the child’s legal father.
Termination of Parental Rights in Child Custody Agreement
Terminating parental rights in Texas does not automatically cancel a child support obligation. Even if a parent’s rights are terminated, the parent could still be responsible for child support.
Rights can be terminated voluntarily or involuntarily, and there are several factors a court can consider. Even if the parties agree and a parent wants to terminate their rights voluntarily, a court may not agree and could deny an order. This can be frustrating for single moms raising children and trying to coparent with an absent or emotionally abusive father.
What are the grounds for modifying custody in Texas?
Custody agreements that are converted into court orders can be modified if circumstances change. There are three grounds for modification of custody in Texas, which include:
- A material and substantial change in a child or parent’s circumstances;
- A child (12 years or older) expressing his or her preference to the court;
- Voluntary relinquishment by the parent with primary custody.
Material changes in circumstances are the most common reason. Temporary changes are not enough. The changes must be long-term. The court must also agree that the modification is in the child’s best interest.
Do we need to sign the parenting plan?
You do not need to sign the parenting plan, as it is not a legally binding document. The parenting plan is simply a guide for drafting the court order that will memorialize your custody agreement into a legally binding document.
How to work with a child custody lawyer in Texas?
A lawyer can help you by answering your legal questions, offering suggestions about your parenting plan, negotiating the custody agreement, and drafting the specific terms and conditions for the agreement and court order.
You can save money when working with a lawyer by creating the parenting plan ahead of time (ask your lawyer if they have a preferred template for you to work on) and pulling together any documentation that is relevant to support your position.
At Alexandra Geczi PLLC, we have experienced child custody lawyers who have helped hundreds of women navigate custody agreements. We have a parenting plan template that we provide to our clients to make the process more efficient. By working together, we can improve the outcome of your custody case.
Our offices are located in the Dallas Fort Worth area, but we can help women throughout the State of Texas.