“Full custody” gets thrown around in the midst of a divorce with children or child custody case. Under the Texas Family Code the phrase “full custody” doesn’t exist. It’s not a legal term in Texas although it is a term people commonly use in a divorce or child custody case. Most people think of it as having sole custody of the kids in some form.
In a Texas divorce with children or child custody case the family court orders a division of custody, or possession, and parental rights. That may be sole custody or joint custody. The parents may share most rights or one parent may have more control and rights over the children than the other parent. In more problematic cases one parent may seek to terminate the rights of the other parent entirely. These issues are understandably hotly contested in most cases and you should talk to an experienced family law attorney about your case and how to protect your relationship with your kids.
What do people mean by full custody?
In a Texas divorce with children or child custody case the family court has a duty to establish rules for what people normally call “custody” of the kids. Attorneys use the term custody when discussing cases with clients but under the Texas Family Code the custody relationship includes several issues, including:
- Possession of the children;
- Access to the children;
- Rights to make decisions about the children;
- Access to information about the children; and
- Sometimes also child support issues.
The term “full custody” does not occur anywhere in the Texas Family Code and has no specific meaning under Texas law. It is a phrase in common use and it has an edgy ring to it in TV and movies. Parents use the term full custody to mean a wide variety of arrangements. Often parents use the term to mean some arrangement in which the court awards one parent the majority time possessing the children with the other parent receiving infrequent possession or access. That is not especially clear because that can mean any number of arrangements including:
- The standard possession order under the Texas Family Code, which is joint custody, which gives one parent the majority of possession time with the other parent possessing the kids on Thursday nights and alternating weekends;
- Sole custody where one parent has exclusive possession of the children and the other parent gets access, or visitation, time on a limited basis;
- Sole custody in which one parent has had rights terminated and the parent with legal rights completely controls the relationship;
Even within sole custody and joint custody schedules and rights can vary considerably based upon an agreement by the parents or the decide of the family court based on the best interests of the children.
Parents throw out full custody frequently in divorces and child custody cases without much specificity. If you think you want full custody or the other parent threatens to “take” full custody you should talk to your family law attorney about your case and what to do. Under the Texas Family Code what people call full custody is often sole custody or terminating the other parent’s rights.
Parental rights under the Texas Family Code
Under the Texas Family Code a court can award several types of rights to parents in a joint or sole capacity. These include possession which is the physical right to control the physical presence of the children. Possession is often what people think of as custody because that parent has actual custody of the child. The Texas Family Code describes this as “possessory conservatorship.” This is similar to access, which the right to be in the presence of the children.
Access means you can be with the kids but do not have the right to take them away from the other guardian. A parent who has possession necessarily has access to the children at the same time; however, sometimes a parent who shares possession may have access to the kids during the other parent’s possession time. For example, if a child has a school activity during one parent’s possession time the other parent probably has the right to attend the school activity.
In addition to possession and access, the Texas Family Code awards parents conservatorship rights and duties which cover several topics. The legal term for this under the Texas Family Code is “managing conservatorship.” These rights include rights to make educational and medical decisions, where the children live, access to medical and academic records, the rights to control property owned by the children, file lawsuits for them and other rights and duties typical for a parent.
Most of these parental rights and duties can be sole or joint rights and duties. For example, it is common for parents to order parents to have joint decision-making over non-emergency medical care but if the parents have joint custody the parents may have the right to make emergency medical decisions without consulting the other parent first.
Dividing parental rights between the parents
How the family court organizes possession, access, rights and duties between the parents is extremely important. After a divorce or child custody proceeding the parents have to learn to work as co-parents, the children have to learn how to adapt their relationships to the individual parents and the parents have to learn how to be parents without the other parent in the home. How the judge orders, or the parents agree, to organize the family after the divorce or custody case can decide a lot about how fast the parties settle into new norms and whether the court order lasts as a productive arrangement. A poorly constructed custody order can cause more harm than good. The parents may quickly find themselves back in court.
Sole custody vs. joint custody under the Texas Family Code
The Texas Family Code does not define full custody but it uses two related terms: sole custody and joint custody. Sole custody can seem a lot like what people think of as full custody. Sometimes they mean a more severe order terminating one parent’s rights and relationship with the children.
Joint Custody under the Texas Family Code
Joint custody is the norm in a Texas divorce or custody case. It is formally described as “joint managing conservatorship” under Chapter 153 of the Texas Family Code. This means the parents share possession or custody of the children in addition to sharing in the rights and duties of a parent. Joint custody can be any arrangement where the parents share possession and rights to make decisions about the kids. It can be the standard possession order which one parent has the majority of possession while the other parent gets Thursday nights, alternating weekends, some holidays and a block of summer time. It can be a 50/50 possession schedule or any other shared custody time.
Joint custody is by far usual outcome in a divorce or custody case. The Texas Family Code presumes that giving both parents their own time to fully parent the children is in the kids’ best interests. If the parents lived together with the kids then that is the most likely outcome. If the parents were both involved with the kids to some capacity and lived together then usually it is sensible to continue those relationships. Sometimes the family history does not support continuing these relationships as the best interests of the children.
Sole custody under the Texas Family Code
Sometimes the family relationships do not support joint custody and the court will order sole custody. More formally this is a “sole managing conservatorship.” This is sometimes what people think of as full custody. In a sole managing conservatorship one parent has the exclusive rights to make important decisions about the children. In a sole custody arrangement the family court often will still order the parents to share possession of the kids with the parent without managing conservatorship having limited rights to make decisions.
Section 153.132 of the Texas Family Code describes the typical rights and duties of a parent with sole managing conservatorship to include:
- the right to designate the primary residence of the children;
- to consent to medical, dental, psychological, psychiatric and surgical treatment;
- the right to receive child support payments;
- the right to represent the children in legal proceedings;
- to consent to marriage and enlistment in the armed forces;
- to make educational decisions;
- the right to receive the services and earnings of the children;
- act as the guardian of the child’s estate (property); and
- the right to apply and maintain a passport.
It is a rebuttable presumption under the Texas Family Code that both parents should have managing conservatorship over the children and share in these rights. Circumstances can rebut that presumption. Family violence specifically destroys the presumption; however, other facts can rebut the presumption. Sometimes courts will award some rights exclusively and others jointly depending upon the agreement of the parties or the facts presented to the court. Generally family courts do not easily award sole custody unless the evidence supports why joint custody is a risk to the children.
Sole custody does not mean one parent has total control over the children. In the majority of circumstances the court will still award joint possessory custody even if it orders one parent to exercise decision-making over the well-being of the children. The non-managing conservator may have more limited possession or even as little as supervised visitation.
Terminating a parent’s rights in Texas
If parents do not mean “sole custody” when they say “full custody” then they usually mean total control of the children with the other parent’s rights completely terminated. The Texas Family Code includes provisions to terminate a parent’s rights to everything with the kids. Terminating a parent’s rights is a severe outcome. Family courts do not easily terminate a parent’s rights.
Chapter 161 of the Texas Family Code deals with termination proceedings. Parents can voluntarily terminate their rights in certain circumstances or a court can involuntarily terminate a parent’s rights. When a court terminates a parent’s rights that parent loses all legal rights to possess, access, or make decisions about the child. In that situation a parent retaining rights has the absolute right to dictate any relationship between that parent and the child.
Terminating a parent’s rights is no easy task in Texas. Chapter 161 of the Texas Family Code lays out specific reasons why a parent’s rights may be terminated against their will. These generally involve creating a serious physical or psychological risk of harm to the child. Being a lousy parent or a lousy spouse is not enough. The parent has to be a serious physical or psychological risk in the future. (For more about terminating a parent’s rights read this post.)
Terminating a parent’s rights means as a matter of law that parent is no longer a parent. Biologically the parent is still physically a parent but has no rights or duties to the child. That parent loses the right to possession or even access to the kids. That parent cannot make decisions about the children nor access any of their medical or academic records. It gives one parent truly full custody over the kids.
How to get full custody in Texas
Depending upon what you mean by full custody there are two ways to get full custody in Texas:
- File for sole custody in your divorce or custody case; or
- File to terminate the other parent’s rights.
Generally to file for sole custody or terminate the parent’s rights you initiate a lawsuit in the family court where the child lives. In larger metro areas like Dallas, Fort Worth, Austin, or Houston, the state courts create specific family law courts that hear most or all of the family law proceedings in the district. In less populated areas the general district courts may hear all or most of the family law proceedings in the district. Family law proceedings are similar to other civil lawsuits in Texas. Your case may end in an agreed order or you may have to take your case to trial. At the end of the trial the decisions made will form the basis for the court order on custody rights.
How to fight for full custody in Texas
How you fight for full custody in Texas depends on the path you pursue: sole custody or terminating rights. The Texas Family Code sets very different standards for what you must prove in each case. There are overlapping issues and evidence may support both paths to some extent; however, terminating a parent’s rights requires more specific circumstances than seeking sole custody.
Fighting for sole custody
Winning a custody case for sole custody is easier than terminating a parent’s rights but still not an easy feat. The Texas Family Code presumes this is not in the child’s best interests. It is up to the parent seeking sole custody to prove it is in the child’s best interests. Awarding sole custody is not as easy as proving the other parent is kinda lousy. You must prove that the child is best served by one parent having little to no decision-making over the child. Often that is because one parent is very lousy in specific ways but it may also be because the child has specific needs that requires one parent to exercise decision-making.
Section 153.005 of the Texas Family Code guides the court’s decision on sole custody. This section requires the court to award at least one parent as a managing conservator. In deciding whether to award a parent managing conservatorship it must consider:
- If the parent has a history or pattern of family violence;
- a history or pattern of child abuse or neglect;
- if there is a permanent protective order against that parent.
Most of the time a judge awards sole custody because the parent has a history of family violence, child abuse, or child neglect. In these circumstances it can be a danger to the child to give that parent rights to make decisions. The right to exercise those decisions can be used to threaten psychological or financial harm to the child or parent. The abusive or neglectful parent may withhold decisions to force the other parent to comply with that parent’s desires. This is not a decision to punish the parent for past misdeeds but to prevent future harm.
Fighting to terminate parental rights
Terminating a parent’s rights is severe and results in truly full custody in the remaining legal parent’s rights. While drastic this decision is sometimes necessary to protect a child from a dangerous parent. To terminate a parent’s rights against their will you must prove specific circumstances of extreme neglect or abuse outlined in Chapter 161 of the Texas Family Code. In addition to arguing specific circumstances of abuse or neglect, you must prove that circumstance s true by “clear and convincing” evidence. Clear and convincing evidence is a legal standard of evidence which sets a very high bar.
Some of the reasons to terminate a parent’s rights overlap with the abuse and neglect reasons to pursue sole custody but the burden of proof is much higher. In a petition for sole custody the burden of proof is the preponderance of evidence which means you have to prove it is more likely true than not. Not easy in family law cases but not as difficult as clear and convincing as a burden of proof. Before making decisions about which path to pursue you should talk to an experienced child custody or divorce attorney who can consider the evidence and advise you on how to proceed based on the strength of evidence.
Hiring a family law attorney in Texas to fight for full custody
Family law proceedings, especially when you fight for full custody in Texas, are complicated and ugly battles. You have lived with the circumstances of the other parent and your kids so you know your situation from the inside. You have an emotional connection to the circumstances and your thoughts about what is right for your kids is not necessarily grounded in what the law thinks is right.
Proving a case for full custody, or any custody arrangement, requires understanding Texas law, judicial procedure and the family judges in your area. An experienced family law attorney knows how to take appropriate steps to understand your situation and advise you on how to proceed. Your divorce or custody attorney can advise whether sole custody or terminating rights is realistic in your case and how to make the best decisions to produce the best possible results.