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Texas law does not allow a judge to favor mothers or fathers in custody cases, though how each parent fares still depends on the facts. Under Section 153.003 of the Texas Family Code, a judge deciding conservatorship, the Texas term for custody, must weigh each parent’s qualifications without regard to the sex of the parent or the child, or to the parents’ marital status. What shapes the outcome is the child’s best interest, each parent’s role in the child’s life, and, for unmarried parents, whether the father’s paternity has been established.

Equal Custody Rights and When Paternity Comes First

Conservatorship is the set of parental rights and duties, including the right to decide where the child lives. The rule against favoring either parent covers three decisions: who is named sole managing conservator, whether the parents are named joint managing conservators, and the terms of each parent’s possession and access, meaning the parenting-time schedule. Under Section 153.002 of the Texas Family Code, the child’s best interest is always the court’s primary consideration in those decisions.

The one real difference between mothers and fathers can arise before a court is involved. When parents are not married, the mother is a legal parent from birth, but Section 101.024 of the Texas Family Code treats a biological father as a legal parent only once he is presumed, acknowledged, or adjudicated to be the father. An unmarried father usually establishes paternity through a signed acknowledgment or a court order before he can ask for conservatorship on equal footing.

What Factors Does a Texas Judge Weigh in Custody Cases?

When parents have not agreed on a parenting plan and the court is deciding whether to name them joint managing conservators, Section 153.134 of the Texas Family Code directs the judge to consider:

• Whether the child’s physical, psychological, or emotional needs and development will benefit
• Whether the parents can put the child’s welfare first and reach shared decisions
• Whether each parent can encourage a positive relationship between the child and the other parent
• Whether both parents took part in raising the child before the case was filed
• How close the parents’ homes are to each other
• The preference of a child 12 or older about who decides the child’s primary residence
• Any other relevant factor

Every factor describes conduct, not identity. On the child’s preference, Section 153.009 of the Texas Family Code requires the judge in a nonjury case to interview a child 12 or older in chambers when a party asks, but the interview does not reduce the judge’s discretion, so a child’s choice of which parent to live with is one input, not the decision.

How the Joint Custody Presumption Protects Both Parents

Both parents start on equal footing. Under Section 153.131 of the Texas Family Code, the court must name a parent sole managing conservator or both parents joint managing conservators unless it finds that appointing the parent or parents would significantly impair the child’s physical health or emotional development. The law also presumes that naming both parents as joint managing conservators is in the child’s best interest. That presumption can be rebutted, and a finding of a history of family violence involving the parents removes it.

Does Joint Custody Mean Equal Time With the Child?

No. Section 153.135 of the Texas Family Code says joint managing conservatorship does not require equal or nearly equal periods of possession. A joint custody order usually names one conservator with the exclusive right to designate the child’s primary residence, which is what most parents mean when they ask who has custody. The other parent’s time is often set by the standard possession order, which Section 153.252 of the Texas Family Code presumes provides reasonable minimum possession and serves the child’s best interest.

How Does Family Violence Affect Custody in Texas?

Evidence of abuse matters far more to a custody decision than either parent’s sex. Under Section 153.004 of the Texas Family Code, the court must consider evidence of intentional abusive physical force or sexual abuse by a parent against a spouse, the child’s other parent, or anyone younger than 18 within the two years before the case was filed or while it is pending. When credible evidence shows a history or pattern of child neglect or physical or sexual abuse by one parent against the other parent, a spouse, or a child, the court may not name the parents joint managing conservators. The law also presumes that naming the abusive parent sole managing conservator, or the parent who decides the child’s residence, is not in the child’s best interest.

Get Answers on Whether Texas Courts Favor Mothers or Fathers

Worrying that Texas courts favor mothers or fathers, and that the judge has already decided against you, can make a custody case feel lost before it starts, but the law points the court to the child’s needs and each parent’s conduct instead. At The Love DuCote Law Firm LLC, we represent mothers and fathers in Sugar Land, Fort Bend, Houston, Harris County, and Katy, Texas, and managing partner Jeremy B. DuCote is a member of the State Bar of Texas Family Law Section. Call 832-662-1294or contact us to talk about your custody case and what the court is likely to weigh.

The Love DuCote Law Firm LLC – Texas Office
1600 Highway 6, Suite 480
Sugar Land, Texas 77478

Phone: (832) 786 2949
Fax: (832) 553 7765