Custody

A Suit Affecting the Parent-Child Relationship (SAPCR) is the legal case more commonly known as a custody case. A SAPCR establishes conservatorship, possession schedules, and child support. In other instances, it may cover additional issues for a child and co-parents, such as communication between parents, extracurricular activities, electronic communication with the child, therapy for the child, a co-parenting facilitator for the parties, and many more possible areas.

SAPCRs come in two forms: an original SAPCR and a Modification of a SAPCR. An original SAPCR creates orders for children whose parents were not married; otherwise, the parenting plan would be included in a Final Decree of Divorce. Modifications are suits to change the current orders, which may have been established during a divorce or a SAPCR. While these suits may seem similar, they have different burdens of proof and are governed by different parts of the Texas Family Code. It is important that you understand the different burdens of proof as you navigate your case through hearings, mediation, and trial.

The most common question that clients ask is, “how do I win FULL custody?” This notion of full custody is almost never applicable and is only achieved if one parent’s rights are terminated. Generally, when asking about “full custody,” someone is asking to be the parent with the exclusive right to determine the primary residence of the child, or more commonly known as the primary parent. If you are appointed as the parent with the exclusive right to designate the primary residence of the child, then most often, the other parent will have possession of the child pursuant to the Texas Family Code Standard Possession Order. It is a schedule that allows both parents significant time with the children. However, it is becoming more common for equal possession schedules. It is important to consult with an attorney familiar with the judges and county in which your suit will take place.

Conservatorship

Texas family law breaks parenting into three broad categories: conservatorship, possession and access, and support. Possession and support are exactly what they sound like. A possession order is the schedule that the parents follow, which determines who has possession when, when and where possession exchanges occur, electronic access, and any other requirements that may affect the ability of a parent to exercise possession. Support encompasses both the child support amount to be paid by one parent as well as medical and dental support. In comparison to possession and support, conservatorship is less straightforward.

Conservatorship defines the legal rights and duties of a parent regarding a child. Parents fall within one of three designations of conservatorship: joint managing conservators, sole managing conservator, and possessory conservator. Some of these rights include the right to receive and access information, to consult with doctors and school officials, to be designated on records for the child, to consent to invasive or emergency medical procedures, and to direct the religious and moral training of the child. Within the duties of each conservator, there are duties to inform the other conservator of significant information as well as to provide support and care for the child. The most substantial rights of a conservator, however, focus on decision-making.

These rights and duties are allocated in a manner specific to the facts of a case. Generally, these are the decision-making rights that cause the most contention.  

• The right to determine the primary residence of a child.
• The right to receive child support for the child.
• The right to make educational decisions.
• The right to make medical decisions regarding invasive procedures.
• The right to make decisions regarding psychological and psychiatric treatment.

In the case of joint managing conservators, these decision-making rights can be given exclusively to one parent, like the right to determine the primary residence or the right to receive child support. These decisions can also be divided between the parties, requiring an agreement of the parents or using some process of tiebreaking in the event that they are unable to agree. However, if one parent is a sole managing conservator, that parent typically has all the exclusive rights to make these decisions.

Under Texas Family Code § 153.131, it is presumed that it is in the best interest of a child for both parents to be joint managing conservators, which is the result in a majority of cases. A parent seeking to rebut this presumption must prove that doing so would impair the child’s physical health or emotional development, which can be a hard burden to meet. However, there is no presumption it is in the best interest if there is a finding of a history of family violence.

If the presumption for parents to be joint managing conservators is rebutted, one parent would be a sole managing conservator, with the other parent being a possessory conservator.

Holley Factors

When determining issues of conservatorship and possession of and access to a child, Texas Family Code § 153.002 establishes that the best interest of the child is the primary consideration of the Court. The code does not explicitly state what the Court must consider when determining the best interest of the child. Where the statute falls short, case law provides insight on helpful factors that a Court may consider.

In Holley v. Adams, the Texas Supreme Court delineated nine factors that courts regularly apply when determining the best interests of the child. This list went on to be called the Holley Factors. These factors are often used by professionals in family law matters, such as a Guardian Ad Litem or an Attorney Ad Litem, as they present what they believe to be in the best interest of a child and the basis of that position. The nine Holley Factors are:

1. The desires of the child.
2. The emotional and physical needs of the child now and in the future.
3. The emotional and physical danger to the child now and in the future.
4. The potential abilities of the individuals to promote the best interests of the child.
5. The programs available to assist these individuals to promote the best interest of the child.
6. The plans for the child by these individuals or by the agency seeking custody.
7. The stability of the home or proposed placement.
8. The acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one.
9. Any excuse for the acts or omissions of the parent.

It is important to note the limitations of the Holley Factors. Though the court may use these factors in any case regarding conservatorship and possession, Holley v. Adams was a termination case, in which one parent sought to legally terminate the rights of the other. Most family law cases are seeking to establish or modify the parent-child relationship, not terminate it outright. The factors, therefore, may provide less insight when comparing parents and households that are similar.

Another limitation of the Holley Factors is that they are neither explicitly required to be used by the courts nor exhaustive. A court may consider additional relevant factors beyond these, if they even apply the Holley Factors at all.

Finally, the Texas Family Code contains presumptions that are in the best interest of the child. It is presumed to be in the best interest of a child that the parents be joint managing conservators. In most cases, it is necessary to rebut that presumption if one parent is seeking to be a sole managing conservator. Therefore, the Holley factors might not be as helpful to establish the presumption is true. As in the case of Holley, the factors could be more impactful to rebut the presumptions of the Texas Family Code.