Written by attorney Eric Stephen Lafleur

What does "primary custody" mean in Texas?

Not surprisingly, clients in contested custody cases will tell us they want "primary custody" or "sole custody" of their children. You'll often hear lawyers use similar terminology. So, it might surprise you to learn that you could read the Texas Family Code, front-to-back, and never find the terms "primary custody" or "sole custody".

To start with, the Family Code breaks up what most people think of as "custody" into two separate, but related, concepts: "conservatorship" and "possession". "Conservatorship" refers, generally, to the decision-making rights a parent has over his or her child (for instance, the right to make educational decisions, or to consent to medical treatment). "Possession", of course, refers to the times a parent is entitled to physical possession of the child.

Regarding conservatorship, the Family Code tells judges to presume that it is in the best interest of the child that the parents be named "joint managing conservators". See Texas Family Code Sec. 153.131(b). Generally, this means the judge is going to give each parent at least a roughly equal set of decision-making rights for the child - unless there are some exceptional circumstances in the case (family violence, drug use, etc.). One exception to this is that, in most cases, the Family Code instructs the judge to give one parent or the other the "exclusive right to designate primary residence" of the child. See Texas Family Code Sec. 153.133. This right is is what lawyers are referring to when they say "primary custody".

This relates to the issue of possession because the Family Code also instructs judges that, whichever parent does NOT have the "exclusive right to designate primary residence" should usually have possession of the child according to the terms of the "Standard Possession Order" (SPO). See Texas Family Code Sec. 153.252. Most clients misunderstand the SPO and, as a result, lose more sleep than necessary when they're involved in a contested custody case. They often think that, if the other parent wins "primary custody", they will be reduced to distant observers of their kids' lives.

Fortunately, that is not the case. The SPO provides the "non-primary" parent with more possession time than most people realize. As a starting point, the SPO gives the non-primary parent the 1st, 3rd and 5th weekends of each month. By default, those weekends are from Friday at 6:00 p.m. to Sunday at 6:00 p.m. But the Family Code allows the non-primary parent to elect to expand those weekends: to start earlier (Thursday when school lets out) or end later (Monday when school resumes). The Family Code also gives the non-primary parent a block of 30 straight days in the summer, and splits holidays equally between the parties.

Assuming the non-primary parent makes all the elections available to him or her, the result is that (depending on how the calendar falls in a given year) the non-primary parent will have possession of the kids for something like 40-plus percent of the nights each year. Obviously, you'd rather have 60% than 40%, but the point to take away is that even the "non-primary" parent will have regular contact with their kids. And the fear that "I'll never see my kids" is simply not true.

Below is a link to the State of Texas website where you can read the actual text of the Family Code's SPO. The SPO can be found in sections 153.311 - 153.317. It can be kind of dense reading, so I've also posted a link to a calendar I posted on my blog, depicting the days and times when the non-primary parent will have possession of the kids under either the SPO, or the expanded SPO. NOTE: this calendar is based on the Allen I.S.D. calendar (the SPO in any given case is influenced by the local school district calendar). So, if your kids are in another school district, the SPO and expanded SPO schedule may be different, but it should be pretty close.

From reading through the SPO, you'll see that it contains alot of contingencies, so please understand that the calendar is provided as a general information aid only. If you have specific questions about your possession order, or how the SPO might be applied in your particular case, please make an appointment with a family law attorney to discuss your case in detail.

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