Change in Texas Law Eases Strain of Child Custody Proceedings





Determining questions of child custody can be one of the most difficult, contentious and expensive steps in the divorce process, even if the parties generally agree on an overall plan. A recent change in Texas law has removed what was often an obstacle to the timely settlement of many custody disputes.

Determining questions of child custody can be one of the most difficult, contentious and expensive steps in the divorce process, even if the parties generally agree on an overall plan. A recent change in Texas law has removed what was often an obstacle to the timely settlement of many custody disputes. Although the full effects of the law remain to be seen, it appears likely to reduce the number of high-conflict child custody proceedings, thus alleviating some of the stress that families experience as a result of divorce.

Problems of High-Conflict Child Custody Proceedings
High-conflict child custody proceedings often occur in cases in which there is little trust between parents, a high level of anger between spouses and a willingness to participate in prolonged litigation. Under these circumstances, it can be easy for parents to lose focus and become more concerned with fighting their soon-to-be ex-spouses than with doing what is right for their children. These proceedings not only waste judicial resources and cost parties unnecessary expense, but they also may cause children emotional, psychological and even physical harm.

Texas Joint Conservatorship Basics
In part to alleviate the potential for high-conflict custody proceedings, Texas courts presume that the best interests of the children are served by both parents' being appointed joint managing conservators. As joint managing conservators, parents share the powers and duties of parenthood under a court-approved plan. Such plans outline each parent's rights, duties and responsibilities with respect to the child's physical care, support, education and other matters. The goal of this approach is to assure that children have frequent and continuing contact with their parents; to provide a stable, safe and nonviolent environment for the children; and to encourage parents to share in the responsibilities of raising their children after the marriage ends.

A Texas court will approve a plan suggested by the parents, provided that the plan meets statutorily defined guidelines. However, the court will dictate the terms of the joint conservatorship if the parties cannot agree. Allowing the parents to present their own plan to the court encourages negotiation and compromise on child custody matters, thus reducing litigation, cutting down on costs and allowing the family to begin the healing process.

Problematic Statutory Guidelines
Until recently, the statutory guidelines for jointly managed conservatorship plans presented a potential hurdle to parents' willingness to agree to a parenting plan outside of a courtroom: a Texas court could accept parents' joint managing conservatorship plan only if the proposed plan designated which parent would determine the children's primary residence. This power was an exclusive right, meaning that only one parent was allowed to make the decision. Although parents were allowed great discretion in allotting the rights and duties of each parent with respect to their children's physical care, support and education, only one parent was allowed to make the decision about this crucial issue.

It is easy to see how this requirement would provoke conflict. Even if parents agreed on every other point of their children's care, the court could not approve their plan unless it gave only one parent the right to make the decision about where their children would live. If the parents could not agree, the judge would decide which parent had the exclusive right to determine the primary residence of the child. Thus, rather than give up their right to have a say about where their children lived, many parents chose to fight the battle in court.

A New Approach
In 2009, the Texas legislature amended the joint conservatorship law. As amended, the law now allows a court to accept a parent's proposed joint conservatorship plan even if it does not grant one parent the exclusive right to determine where his or her children will live, so long as the plan dictates that the children's primary residence will be within a specified geographical area. Although this change in the law may seem minor, even a small modification can make a big difference in the highly charged atmosphere of many divorce proceedings. It is hoped that these new guidelines will reduce conflict and make it easier for parents to agree on joint conservatorship plans.

ABOUT THE AUTHOR: Rick Bell
Rick was born and raised in the Houston area and graduated college from Southwestern University in 1994. After graduation, Rick elected to stay near his family in Texas by attending law school at South Texas College of Law. After graduating from law school in 1997, Rick immediately began concentrating his legal practice to family law and criminal defense by litigating cases throughout the State of Texas.

Copyright Richard T. Bell & Associates, PC
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.



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