What does the court consider when determining custody?

July 4, 2023

If you are a married Texas parent facing divorce, probably one of your biggest concerns is whether or not you will have custody of your children when your divorce becomes final. Texas law allows you and your spouse to make a private agreement about custody and parenting issues, but the court must approve your parenting plan. If, however, you and your spouse litigate custody, the judge will make the final determination.

FindLaw explains that the judge’s overall concern when deciding custody is always the best interests of your children. Therefore, (s)he will consider such factors as the following:

  • The physical and mental health of you and your spouse
  • Whether either you or your spouse has a drug or alcohol problem or has neglected or abused the children during your marriage
  • How your children interact with you and your spouse
  • What types of relationships your children have with you and your spouse
  • How established and adjusted your children are in their current school and neighborhood
  • Whether any of your children has special needs

Current caregiving factors

In addition to the above, the judge will likewise consider whether you or your spouse currently provides the following types of childcare:

  • Preparation of your children’s daily meals
  • Oversight of their daily bathing, grooming, dressing, etc.
  • Decisions regarding their health care needs
  • Help with their homework
  • Participation in their school and recreational activities

Keep in mind that the judge may want to privately interview any of your children who is age 12 or above to find out what, if any, preference (s)he has as to which parent (s)he will live with after your divorce. The judge need not, however, grant custody in accordance with that child’s preference. Ultimately the custody decision belongs to the judge alone.

This is general educational information and not intended to provide legal advice.

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