One of the main issues in a divorce is often which parent has “custody” of the children. Up until a few years ago, the divorce court designated one parent as the “primary” or “custodial” parent and the other parent as the “non-custodial parent.” While those terms are still commonly used in Texas, it is no longer mandatory for a divorce decree to specify a parent as “custodial” or “non-custodial.” Unless extreme circumstances apply, each parent is designated as a “Joint Managing Conservator.” It is necessary, however, for a divorce decree to state the residence of the children and specify what, if any, geographic restriction applies to their residence. The battle over “custody” of children, then, is now morphed into a battle over who has the right to decide the residence of the children, regardless of the label given the parents. While these days you will often see the dispute over what previously was described as “custody” of the children described as a dispute over who decides the residence of the children, the basic dispute itself remains unchanged.

There is a lot of confusion among divorcing parents over what a battle for custody entails. A parent will often tell his or her lawyer, “I want full custody.” Many of them confuse the label “Joint Managing Conservator” with having the children live alternating weeks with each parent. While there can be many types of custody agreements, if the parties cannot agree, the court must decide with which parent the children will reside. How the court make this decision involves many factors which fall under the generic heading “best interest of the children.” Because of the recognized need for children to have a stable environment, the most important of the long list of factors falling under the “best interest” laundry list is “where have they been living and with whom?” Or, if they have been living in the same household with both parents, “who has been the ‘primary parent’ or the parent who has most cared for them on a daily basis?” Absent some rather obvious factors such as negligence and/or abuse by one parent, a court will almost always lean toward the status quo, or keeping things as they have been in the recent past. The hardest decision for a judge to make is between two good parents who are divorcing and who have each spent a near-equal amount of time caring for their children. Other factors may then come into play, such as each parent’s work schedule, the amount of flexibility in that work schedule, either parent’s association during a pending divorce with a paramour, whether the children will have to change schools if their residence is with one or the other parent, for example. Gender bias or “mommy always wins” while much less a factor than in past years, still occasionally rears its head.

Once a judge makes a decision about where the children will live, the next decision is what, if any, geographic restriction will apply. There is usually a geographic restriction put into place which says that the “primary” parent or parent with whom the children live must live within the county where he or she resides at the time of the divorce or in a “contiguous” county or a county which touches the county where the “primary” parent lives. This restriction is usually lifted if, at the time of the divorce, the “non-custodial” and “custodial” parent live in the same county and the “non-custodial” parent moves away from the county where the children are living. This is one of the most understood aspects of custody litigation. A parent who is designated as the parent with whom the children live often ask me, “Why is it that he or she (meaning the “non-custodial” parent) can move but I cannot?” The philosophy behind this factor of Texas law is that children are entitled to and need frequent contact with both parents. If the “custodial” parent moves away, the “non-custodial” parent’s interaction with his or her children will most likely be less—sometimes much less—than it was prior to the divorce. As a result, not only do the children suffer, so does the “non-custodial” parent. It is, then, the duty of the “custodial” parent to maintain that proximity if at all possible.

Custody cases are exceedingly expensive and often very emotionally damaging for both parents and the children. A true custody case, where each parent has taken a stand for having the children live with him or her, often involves not only the lawyer for each parent but also an attorney appointed by the court to represent the interests of the children, or amicus attorney. Such cases also may require psychological testing of both parents and the children which often is a barrage of testing and evaluation. A jury may be requested by either party to make the decision about where the children will live. The parents usually share this financial burden, paying not only his or her own lawyer but an equal share of the amicus, psychological testing, etc. Because of the financial and emotionally costs, I caution any party considering a custody case to carefully evaluate what is really best for the children involved and not make a decision based on power or control.


Divorce courts usually do only two things, although those two things can take many forms and range from quite simple to extremely complicated. The two things are, divide community property and make orders regarding children who have not yet turned 18 (the court’s jurisdiction over a child ends when the child turns 18, except child support, which ends either at age 18 or when the child graduates from high school, whichever comes last).

Community property is property accumulated by the parties during the marriage. Note that those items which were acquired before the marriage, or were given to a party, or which the party inherited are not community property. It is the burden of the person claiming property is not community to prove that it is not.

Regarding children, judges give the parties a label – usually but not always “Joint Managing Conservator;” decide the rights and duties of the parents, such as which parent the children will reside with, who has the right to take the children to the doctor or psychiatrist, etc.; and various other rights and duties; determine child support, which is usually according to a formula prescribed by the Texas Legislature; and decide visitation for the non-custodial parent. In addition to the two things mentioned, the Courts also, as a result of fairly recent litigation, may order post-divorce alimony (known in Texas as “maintenance”) for either party. As Texas is what is known as a community property state, alimony is still rare in Texas and the rules under which a Court may order it are quite restrictive.

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