Does Primary Custody Exist in Texas?

Usually a misnomer due to its frequency in popular culture, “primary custody” is not an actual legal term recognized in Texas. Texas courts will typically appoint both parents as “joint managing conservators” or “JMCs” for their children, and what people commonly refer to as “primary custody” tracks most closely with the party who is granted an exclusive right to determine “primary residency” of the child.

To better understand this concept, I find it helpful to think about all the different rights and duties of a parent as strands of a rope. Prior to court involvement, all those rights and duties are “together” unified with both parents. Both parents have the full complement of rights and duties at all times, and neither parent has any authority to stop the other from exercising those rights, or conversely the obligation to take any particular action in regards to the child.

There are pros and cons to this situation, but the main downside, and the one that the court most specifically tries to address, is that in the event of a disagreement there is no clear way to make a decision or to break a tie. If parents are on the same page, this often isn’t an issue at all as there is communication, compromise, and a mutual desire to do what is best for the child; however, if the parents are not on the same page, it is quite important to have predictability in knowing who is in charge in a given situation.

Therefore, a custody order (often called a ‘Final Decree of Conservatorship”) will spell out in detail as many different eventualities as possible and which parent has which rights and duties in those given situations. The parent’s right to make certain decisions for the child, including decisions about medical care, mental health care, and educational decisions is defined as “conservatorship.” Under Tex. Family Code § 153.131, Texas courts presume that both parents should each have a say in important decisions concerning their child, in the absence of an emergency or other factors, and to share in equal custody. (For a discussion on the factors see previous blog entry on best interest of the child factors). However, there is one particular right that tends to be highly contentious, and from which a lot of other rules and laws are based: “the exclusive right to determine primary residence of the child”.

If you are interested in filing for divorce or modifying a current family court order in Denton County and Collin County, schedule a consultation with CokerLegal today.

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