What Does Primary Custody Mean?

Primary Custody in Texas

In family law, child custody is one of the most critical issues that arise during divorce or separation. It refers to the legal relationship between a parent and a child, particularly concerning the parent’s right to make decisions for the child and their living arrangements. Primary custody is a term often encountered among the various forms of custody. Understanding what primary custody means is essential for parents navigating the complexities of custody arrangements, as it directly affects their rights and responsibilities and their children’s well-being.

Definition of Primary Custody

Primary custody generally refers to the parent with whom the child primarily resides. This parent is often called the “primary custodian” or “custodial parent.” Primary custody can be further divided into two categories: primary physical custody and primary legal custody.

• Primary Physical Custody: This means the child lives mainly with one parent, who is responsible for the child’s day-to-day care. While the non-custodial parent may have visitation rights, the child’s primary home is with the custodial parent.
• Primary Legal Custody: This refers to the authority to make significant decisions regarding the child’s life, including education, healthcare, and religious upbringing. A parent with primary legal custody has the final say in these matters, although, depending on the custody agreement, they may still need to consult the other parent.

In Texas, the term “custody” is often replaced by “conservatorship.” The parent with primary physical custody is often called the “managing conservator,” while the other parent is the “possessory conservator.” Under Texas Family Code Section 153.132, the managing conservator typically has the right to decide the child’s primary residence.

What Do Texas Courts Consider When Determining “Primary Custody”?

In Texas, courts typically appoint both parents as “joint managing conservators” or “JMCs” for their children.  What does this mean, though?

“Conservatorship” simply means the parent’s right to make certain decisions for the child, including medical care, mental health care, and educational decisions.  The presumption is that both parents should share these rights so that each has a say in important decisions concerning their child in the absence of an emergency or other factors (which will be a topic of future blog entries here).  See Tex. Family Code § 153.131.

Types of Custody Arrangements

Custody arrangements can vary significantly depending on the circumstances of each case, and it is crucial for parents to understand these variations.

Here’s a table comparing the different types of custody in Texas:

This table summarizes the main types of custody recognized in Texas.

How Primary Custody is Determined

Courts consider various factors when determining primary custody, with the child’s best interests paramount. The “best interest of the child” standard is a guiding principle in Texas, outlined in Texas Family Code Section 153.002. This standard prioritizes the child’s physical, emotional, and psychological needs.

Some factors considered by courts include:

• Parental Involvement: The parent’s involvement in the child’s life, including their role in education, healthcare, and daily activities, is heavily weighed.
• Stability and Continuity: Courts often favor arrangements that provide the most stability for the child. For example, if one parent has been the child’s primary caregiver, they may be awarded primary custody to maintain continuity.
• Child’s Preference: Their preference may be considered if the child is of sufficient age and maturity. In Texas, courts may consider a child’s preference, especially if the child is 12 years old (Texas Family Code Section 153.009).
• Living Situation and Financial Stability: Each parent must provide a stable and nurturing environment. This includes the home environment, school proximity, and the parent’s financial situation.
• Mediation and Negotiation: Courts often encourage parents to reach an agreement through mediation or negotiation before making a final custody decision. The court generally upholds agreements reached by mutual consent, provided they serve the child’s best interest (Texas Family Code Section 153.007).

So, if the parents are joint managing conservators, how do we determine which parent has “primary custody?”

Although many parents use that term to describe their status, it is not an actual legal term recognized in Texas.  The closest standard for determining which parent is “primary” relates to the court’s decision (or the parties’ agreement) to grant one parent the exclusive right to designate the child’s “primary residence.”  That parent is also generally the parent who has the exclusive right to receive child support.

So, in Texas, the term “primary custody” is somewhat misleading.  Parents appointed as JMCs are usually under a Standard Possession Order or “SPO,” where the child spends only a little more time with one parent than the other once all the days and hours are added up.  It is common for parents to agree to a possession order in which the children spend an equal amount of time with each parent.  In these circumstances, neither has “primary custody,” but one parent will still have the exclusive right to determine the child’s primary residence.

Rights and Responsibilities of the Primary Custodian

The parent awarded primary custody has significant responsibilities. They are tasked with the day-to-day upbringing of the child, which includes making routine decisions regarding the child’s education, healthcare, and general welfare.

• Daily Decision-Making: The primary custodian can make everyday decisions about the child’s activities, including school choices, extracurricular activities, and general care.
• Legal Responsibilities: Primary custodians often have the right to make major decisions without the non-custodial parent’s consent, although some custody arrangements may require consultation. In Texas, the managing conservator typically has the exclusive right to decide on the child’s education, medical care, and legal matters (Texas Family Code Section 153.132).
• Visitation Rights: While the primary custodian has most physical custody time, the non-custodial parent usually has visitation rights, also known as “possession and access” rights. Texas law often follows a standard possession order that outlines the minimum visitation schedule for the non-custodial parent (Texas Family Code Section 153.251).
• Child Support: The non-custodial parent is typically required to pay child support to the primary custodian to help cover the child’s living expenses. The amount is usually determined based on the non-custodial parent’s income and the number of children supported (Texas Family Code Section 154.001).

Challenges and Considerations in Primary Custody

Primary custody has various challenges that the custodial and non-custodial parent must navigate.

• Emotional and Psychological Impact: Custody arrangements can significantly affect the child. The custodial parent needs to be aware of these potential issues and work to mitigate any negative impact.
• Balancing Work and Parenting: The primary custodian must often balance work responsibilities with parenting duties. This can be particularly difficult for single parents or those with demanding jobs.
• Parental Conflicts: Disagreements between the custodial and non-custodial parent can arise, particularly regarding visitation schedules and decision-making authority. Effective communication and a clear custody agreement can help mitigate these conflicts.
• Adjusting to Changes: As children grow, their needs change, which may necessitate adjustments to the custody arrangement. This can include modifications to visitation schedules or changes in primary custody if circumstances change significantly.

Texas Primary Custody: What Does That Really Mean?

As noted, the term “primary custody” is misleading in Texas.  The closest standard in our state is determining which parent has the exclusive right to designate the child’s primary residence since parents are presumed to have joint/equal parental rights, and the standard possession order gives each parent an almost equal amount of possession/custodial time.

When determining whether a parent will be appointed as a joint managing conservator (“JMC”), Texas courts look to see if there has been a history of family violence by one parent toward other members of the household.  Let’s say the court finds one parent has committed family violence or has a history or pattern of child abuse/neglect, physical or sexual abuse, or sexual assault. In that case, that parent may not be appointed as a JMC, and the court may also limit or restrict that parent’s periods of possession/custodial time.  See Tex. Family Code § 153.004.

Other factors include:

1. The parent’s ability to give priority to the child’s welfare;
2. The parent’s ability to reach shared decisions in the child’s best interest;
3. The parent’s ability to encourage and accept a positive relationship between the child and the other parent;
4. The parent’s role/participation in the child’s rearing;
5. Whether the appointment of the parent as JMC will benefit the child’s physical, psychological, and emotional needs and development and
6. Where the parents live with one another.

See Tex. Family Code § 153.134.

If one parent has been uninvolved in caring for the child’s basic needs and upbringing, has not been active in the child’s daily activities and schooling, disparages the other parent or actively discourages the child from a relationship with the other parent, or abuses alcohol or other substances (legal or illegal), has frequent emotional outbursts or a demonstrated lack of self-control, or otherwise shows an inability to exercise good parental judgment, the court is less likely to appoint that parent as a JMC, and will instead consider granting “primary custody” to the other parent.

Modifying Primary Custody Arrangements

Custody arrangements are not always permanent and can be modified under certain circumstances. Texas law allows for the modification of custody orders if there has been a material and substantial change in circumstances since the original order was established (Texas Family Code Section 156.101).

• Circumstances for Modification: Changes that might warrant a modification include a significant change in the child’s needs, a change in the custodial parent’s circumstances (e.g., relocation, job loss), or concerns about the child’s safety and well-being.
• Legal Process: To modify a custody order, the requesting parent must petition the court. The court will then determine whether the requested modification is in the child’s best interest.
• Child’s Preference: As children age, their preferences may change. In Texas, a child 12 years or older can express their preference to the court, which may influence their decision regarding custody modification.
• Role of Mediation: Before a modification is granted, courts may require mediation to help parents reach an agreement. If mediation fails, the court will decide based on the child’s best interests.

Conclusion

Primary custody is a fundamental concept in family law, encompassing the legal and physical responsibilities of caring for a child. It is determined based on various factors aimed at serving the child’s best interests. Understanding what primary custody entails, including the rights and responsibilities of the custodial parent, is crucial for anyone navigating the complexities of divorce or separation. Given the potential challenges and need for adjustments over time, parents should seek legal counsel to ensure their custody arrangements are fair, practical, and in the best interest of their child.