There are several statements I hear regularly as a family law attorney. One of the statements I hear the most often from potential clients is “She says if I don’t give her the divorce she wants she will take full custody of the kids, and I’ll never see them.”

Rest assured it’s not that simple to get “full custody.” First off, the Texas Family Code presumes it is in the best interest of the child that both parents participate in the child’s life. This does not mean that both parents must participate equally, but it means that the state presumes that both parents should have access to the child.

Overcoming the presumption that both parents should participate in the child’s life is difficult, and is not something that one parent can dictate to the court. Two adults being unable to get along as civilized people does not create a situation where it is in the best interest of the child to be with only one parent to the exclusion of the other. So when one parent threatens to seek “full custody”, you know that parent simply does not have the authority to make that decision.

It is sometimes possible to get “full custody” under certain circumstances. However, assuming there is no family violence, no regular drug use, no significant incarceration, or other serious factors the court will allow both parents to have access to the child. Even in examples where one parent has a drug or alcohol problem, the courts will prefer to give the problem parent supervised visitation with the children rather than to cut the parent off from the kids completely.

As a side note, Texas does not use the term “custody” in the family law context. Texas uses the term “conservatorship.” Because Texas presumes that both parents should be active in the child’s life, the courts prefer to grant “joint managing conservatorship”, with one parent being the primary joint conservator and the other parent being the possessory joint conservator. The primary joint conservator has day-to-day control and possession of the children, and the possessory joint conservator has visitation as defined by the court in the divorce decree.

As always, this essay does not replace actual competent legal advice. Rather this essay is intended merely to educate. I always recommend seeking competent legal advice for your family law problems or issues so an attorney can evaluate your circumstances in your individual situation.