Chapter 153 of the Texas Family Code deals with
conservatorship, possession, and access.
It is undoubtedly the most important and most contested chapter in
private litigation. The public policy of the state of Texas is to
assure that children of divorce have contact with both parents; are provided a
safe living environment; and rights and duties of raising the children are
shared by both parents.
The right of a parent to have visitation with
his/her children is NOT dependent on whether or not he/she is paying child
support. Possession or access to a
child is a separate issue from support.
“The best interest of the child shall always be
the primary consideration...in determining the issues of conservatorship
…” This is the most quoted section of
the family code. The discretion of the
judge is extraordinarily broad – “best interest” is in the eye of the beholder.
When determining issues of conservatorship,
possession, and access, the court shall consider the qualifications of the
parties without regard to marital status or the sex of the party. This means that the Mother is no longer
presumed to be the best choice for primary conservator.
The court MAY NOT appoint joint managing
conservators if credible evidence is presented of a history or pattern of child
neglect, physical or sexual abuse. The
flip side is, the court MAY appoint joint managing conservators even with the
evidence. If there is a question regarding the behavior of
one of the parents, the court may require supervised access to the child. This supervision can be by an entity or a
person chosen by the court. It is presumed that unsupervised visitation is
not in the best interest of a child if credible evidence is presented of a
history or pattern of past or present child neglect or physical or sexual
abuse.