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Divorce and Child Custody in Texas

The Palmer Systems Approach to Best Practices in Family Law

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We have comprehensive federal research and significant state research. We have well-developed and fully cited argument that will help you hit the ground running in defending your client's constitutional rights in your family law case. You know there are significant problems in family law, we expose the root cause of these problems and provide solutions you can use in court this afternoon. If you aren't using these arguments, or at least discussing these arguments with your client, you are NOT performing your due diligence in protecting your client's rights.

Quick Start Your Case

We have comprehensive federal research and significant state research. We have well-developed and fully cited argument that will help you hit the ground running in defending your client’s constitutional rights in your family law case. You know there are significant problems in family law, we expose the root cause of these problems and provide solutions you can use in court this afternoon.

If you aren’t using these arguments, or at least discussing these arguments with your client, you are NOT performing your due diligence in protecting your client’s rights.

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Divorce and Child Custody in Texas

Divorce and Child Custody issues are different in each of the 5o states. On this page we provide a wealth of resources that are specific to divorce and child custody in Texas.

Texas Child Custody laws 2022

The Texas Family Code can be found online.

Texas Child Custody and Child Support statutes are found in Title 5 of the Texas Family Code. Title 5 is titled: The Parent-Child Relationship and the Suit affecting the Parent-Child Relationship. This is where the acronym SAPCR comes from.

Key Questions for Child Custody in Texas

How to win child custody in Texas?

There are two ways to go about winning child custody in Texas and each depends on how you define winning. If you want to destroy the other parent and take your children from them so that you children don’t get to see that parent at all, you can follow the current system and roll the dice. Maybe you win everything, maybe you lose everything. What is certain is that your children will lose.

If you want your children to know, love, and respect each of their parents then you need another path. If you get along with the other parent you can simply agree, have it written up, and file it in court. If you don’t agree but you also don’t want to destroy the other parent, then you need to look into protecting your parental rights under the Palmer Systems Approach to Family Law and the work we have done at Fix Family Courts.

How to file for child custody in Texas without a lawyer in Texas?

If you are divorcing, then you must file a child custody suit as part of your divorce. This rule is found in Section 6.406 of the Texas Family Code. You can file this suit without an attorney if you and the other parent agree on custody arrangements or you can represent yourself in a contested custody suit but that is risky. FixFamilyCourts.com provides significant help either way. Chapter 102 of the Texas Family Code describes how to file suit.

Sec. 6.406. MANDATORY JOINDER OF SUIT AFFECTING PARENT-CHILD RELATIONSHIP.

(a) The petition in a suit for dissolution of a marriage shall state whether there are children born or adopted of the marriage who are under 18 years of age or who are otherwise entitled to support as provided by Chapter 154.

(b) If the parties are parents of a child, as defined by Section101.003, and the child is not under the continuing jurisdiction of another court as provided by Chapter 155, the suit for dissolution of a marriage must include a suit affecting the parent-child relationship under Title 5.

What types of child custody are there in divorce in Texas?

Chapter 153. Conservatorship, Possession, and Access defines the types of child custody by classifying otherwise fit parents as conservators. It is much simpler to violate the rights of fit parents if you avoid the classification “fit parent” all together. The Texas Family Code is very good at hiding anything that might impose federal constitutional rules on the regulation of domestic relations in Texas. As a fit parent in divorce, you can expect to be reclassified as a managing conservator or a possessory conservator. There can be a sole managing conservator or joint-conservators.

Managing conservators retain care, custody, and control decision rights–otherwise known as constitutionally protected privacy choices regarding child-rearing–to some degree. The sole managing conservator has all the decision rights while the other parent has none. Joint managing conservators will share decision rights. A parent who is NOT graced by the judge with being declared a conservator may nevertheless be entitled to possession time and be categorized as a possessory conservator.

Who gets custody of child in divorce in Texas?

Overwhelmingly, custody goes to the mother. However, since the Texas Family Code permits the judge to discriminate against fit parents equally, the judge can just as easily take a dislike to the mother and take her children away simply because the judge wants to. The judge just has to write down that doing so is in the children’s best interests, they don’t actually have to prove best interest. After all, how do you prove “best”? What is the “best” football team? Who is the “best” female country vocalist? The judge’s opinion on the best interests of a child is no more objective than the answers to these questions.

While the Texas Family Code is fair on its face, the fact that it permits arbitrary discrimination against either parent makes it susceptible to being overturned on constitutional grounds. Even statutes that are fair in their wording must be applied with a fair hand. The Equal Protection Clause actually protects against arbitrary discrimination, not just certain types of discrimination. When fundamental rights such as parental rights are at issue, an even higher standard applies.

If you are a man, you shouldn’t get too discouraged. I won my equal custody long before I knew all the things I am teaching you now. You have a much better opportunity to get equal custody than I did. I never wanted anything more than equal rights over my child. I never asked for anything more. Even though I couldn’t stand living with my child’s mother anymore, I believed strongly that my child had a right to her mother just as fully as she had a right to me. Neither of us were perfect parents and being perfect is NOT the standard the constitution demands.

What are the child custody laws in Texas for unmarried parents?

The custody laws for unmarried parents in Texas are generally the same as for married parents. The Texas Family Code doesn’t actually say that custody is tied to marriage of the parents to each other nor does it say directly that custody is lost because of divorce as other state codes do. The people who wrote the Texas Family Code were smart enough to hide the obvious constitutional violations. For instance, instead of saying that upon divorce a judge may determine custody which establishes a direct punishment for the exercise of a constitutionally protected privacy choice regarding marriage, the Texas Code simply requires divorcing parents to file a custody suit, see Section 6.406.

Standing to file a child custody suit is defined in Sections 102.001, 102.002, and 102.003. Section 102.003 states that “(a) An original suit may be filed at any time by: (1) a parent of the child” without making any reference to the marital status of the parents to each other.

What does the term SAPCR mean in Texas?

SAPCR stands for Suit Affecting the Parent-Child Relationship and comes from the name of Title 5 of the Texas Family Code. Usually, the Texas Family Code is very good at hiding constitutional weaknesses that may be easily attacked but they missed on in establishing this title. The terms “relationship” and “association” are interchangeable in First Amendment law and the First Amendment protects both intimate and expressive associations. Of the intimate associations, close family associations receive the highest protection, strict scrutiny. Expressive associations are almost always receive strict scrutiny protections. Close family parent-child associations are both intimate and expressive associations that must receive strict scrutiny protection if properly challenged. By defining the action as a suit affecting the parent-child relationship, Texas cannot avoid the associational protections, if properly challenged, except through corrupt means. The Texas Supreme Court has not hesitated to use corrupt means to protect judicial ultra vires power in family law, but Texas attorneys rarely if ever make it hard on the Texas Supreme Court. We at Fix Family Courts, on the other hand, intend to make it as hard as possible for Texas courts to continue their corruption.

Does Texas have a best interest of the child state policy?

The Texas Family code establishes the State’s best interest of the child public policy in Chapter 153. Sections 153.001 and 153.002 form the basis of this policy and the Texas Supreme Court cites the many instances in the code where best interest is asserted as part of the State’s best interest policy:

Sec. 153.001. PUBLIC POLICY.

(a) The public policy of this state is to:

(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;

(2) provide a safe, stable, and nonviolent environment for the child; and

(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

(b) A court may not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support.

Sec. 153.002. BEST INTEREST OF CHILD. The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.

Under the Texas best interest of the child public policy, the state legislature says that the only due process required to protect a parent’s rights in a SAPCR proceeding is that the judge merely write down in the record or in the order that the limitation on fundamental rights “is in the best interests of the child.” In simpler terms, Section 153.072 holds that a Texas judge may impose prior restraints on First Amendment protected close family association rights merely by asserting a “substantial” governmental interest in writing and nothing more. Texas family law attorneys are willfully blind to this blatant constitutional violation because it is in their financial best interest to be blind. They cannot se what is against their financial interests to see. You must see for them and you must make your attorney perform his or her fiduciary duty to protect your rights.

Sec. 153.072. WRITTEN FINDING REQUIRED TO LIMIT PARENTAL RIGHTS AND DUTIES. The court may limit the rights and duties of a parent appointed as a conservator if the court makes a written finding that the limitation is in the best interest of the child.

 What are the Holley Factors?

The Texas Supreme Court established the factors that must be considered in determining the best interest of a child in a parental termination proceeding called Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). Even though your Texas judge will tell you that you cannot cite parental termination cases in support of your constitutional rights, your judge will happily cite a parental rights termination case to support his or her ultra vires power. The Holley factors are:

(A) The desires of the child:

If your child attempted to sign a contract or to purchase alcohol or porn, the State would claim that the child doesn’t have the mental capacity to make such a choice. However, the state is all too ready to ask the child to choose a parent and suffer the mental and emotional consequences of that choice for the remainder of their lives. It is nothing short of pure evil to ask a child to choose a parent no matter how benignly the question is asked.

If the judge really cared about the child’s best interest, the judge would tell every child that you get the parents you were born to unless they are proven unfit. Your current teenage emotionally addled choices will have no bearing whatsoever in the custody outcome as a matter of law. As a judge acting in your best interests I would never ever allow you to make the choice to reject a fit parent that is likely to haunt you for the rest of your life. Such choices are for full grown adults, NOT emotionally confused teenagers.

(B) The emotional and physical needs of the child now and in the future:

First, fit parents by the definition of fitness, already see to the emotional and physical needs of the child even where the parents disagree on what those needs may be. The judge’s viewpoint of the child’s emotional and physical needs, beyond minimum reasonable standards of care, constitutes nothing short of viewpoint discrimination.

Second, judicial adjudications deal with past events and resolving past conflicts. Looking to the future and seeking to avoid future conflicts is a policy choice reserved to the legislative and executive branches of government. Courts have no legitimate authority to make policy choices because when courts make policy choices, the courts deprive you of your right to access the courts to challenge the policy choices. This is a basic, fundamental, and inescapable concept addressed in the separation of powers doctrine.

(C) The emotional and physical danger to the child now and in the future:

This one sounds really important but couldn’t possibly be more vague and undefinable. It is part and parcel to broad discretion. It allows a judge to deprive you of rights without any notice at all of what you are being charged with. To the degree it looks to the future, it is entirely speculative. How on earth does a parent defend themselves in a court of law when the judge himself or herself is accusing them of some speculative imaginary crime the parent may commit in the future?

The Texas legislature has already clearly defined in Section 161 of the Texas Family Code what constitutes sufficient harm to a child to warrant depriving a parent of their individual parental rights. Termination rules are how State’s define the difference between fit parents and unfit parents. The State carries the burden of proving a parent to be unfit after the state serves the parent with written notice of the specific charges and provides a full confrontational hearing where the parent can adequately confront the state official making the charges against the parent under an evidentiary standard of clear and convincing evidence.

Newsflash, custody court judges evaluating evidence under a preponderance of the evidence standard, you do NOT have subject-matter jurisdiction to declare a parent to be unfit simply because in your viewpoint they present an emotional or physical danger under some undefined conditions that exist only in your own mind. You fail under notice requirements. You fail because the other parent lacks a private cause of action to pursue charges of unfitness. You fail under an inadequate evidentiary standard. You fail for vagueness. You fail for bias in seeking to act as a prosecutor instead of a neutral and impartial judge. You fail for bias against federal law.

(D) The parental abilities of the individuals seeking custody:

The judge’s viewpoint of the parents’ parental abilities is absolutely irrelevant and impermissible. The Supreme Court has held that the trial court has no choice but to presume the parents are fit. Even if the judge believed a parent to be unfit, the limit of the court’s jurisdiction is to file a complaint with the appropriate child protective agency and to allow them to investigate. If that agency brings charges, it will be for another court with proper subject-matter jurisdiction to determine if the parent is fit. The judge cannot investigate charges and remain neutral. The two acts are fundamentally incompatible.

Judges do NOT get to act as child advocates against the interests of the parents and to conduct an open-ended investigation or “exploratory search” into the realm of family privacy that can never be challenged in a court of law before a neutral and unbiased judge. Parents and children have a heightened expectation of family privacy even in a child custody proceeding against the judge himself or herself.

(E) The programs available to assist these individuals to promote the best interest of the child:

The only proper use of the best interest of the child concept is in softening the application of law in a parental termination proceeding where the court believes that the rights of the parent and child may be protected from termination if the parent can adjust their behavior under State direction. Then, and only then, would the availability of any such program have relevance.

(F) The plans for the child by these individuals or by the agency seeking custody:

Where the parents must be presumed fit, the court lacks any legitimate interest in demanding to know what the parent’s plans are for parenting their child beyond specific circumstances where the exercise of rights by one parent might injure the rights of the other.

(G) The stability of the home or proposed placement:

The rights of parents are individual rights. A married mother’s rights are exactly the same as a divorced mother’s rights. A married father’s rights are exactly the same as a divorced father’s rights. This is true because the rights are individual rights that cannot be limited based upon other associations or upon private choices regarding marriage.

The child does NOT have a constitutional right to “stability” however some random judge may arbitrarily define the term. Where the parents must be presumed to be fit, the stability they provide must be presumed to be adequate. If the State seeks to limit parental rights based upon “stability” then the legislature must define the term in statute and articulate the conditions under which it may overcome fundamental rights.

Parents may value instability as a teaching tool to help their children develop some character trait the parent feels if valuable for the child to learn. No judge’s conflicting viewpoint on the importance of “stability” compared to the parent’s perceived value in instability can establish a legitimate governmental interest to dictate otherwise.

(H) The acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one:

Those alleged acts or omissions of the parent must be committed to writing in precise terms with dates and other specifics that provide for the ability of the accused parent to confront the charges in a proper hearing. They cannot be made up in the judge’s head after the judge has heard all the testimony. In technical terms, the judge may NOT consider these acts or omissions unless they have been properly presented in evidence before him.

Constitutional notice requirements demand that the accused be properly served with these charges before any court may entertain them and proper is already defined in Section 161. The Court’s viewpoint regarding what may or may not be proper is invalid.

(I) Any excuse for the acts or omissions of the parent:

These excuses are part of the evidence that would weigh against termination of parental rights. The parent may have failed to pick up their child from day care necessitating a call to child protective services by the daycare center. However, if the parent, on the way to pick up the child from daycare, through no fault of their own was in an automobile accident that placed them unconscious in a hospital emergency room, they could NOT be considered an unfit parent. Regardless, you cannot be prepared to defend without proper notice.

The Texas Family Code grants your judge “broad authority” to limit your fundamental rights based only upon a “substantial” governmental interest. Your attorney knows that this is unconstitutional. Why is your attorney not fighting for your rights.

Conclusion of Divorce and Child Custody in Texas

The Texas Family Code works hard to hide its constitutional weaknesses from you but it is profoundly vulnerable to being declared unconstitutional. The Texas Judiciary has a vested financial interest in keeping the code from being overturned but it has a greater interest in its ultimate credibility. The key to destroying this code is to present the constitutional challenges in a form that discredits the Texas Judiciary should they continue the corruption. We at Fix Family Courts make it our business to help you defeat the injustice of this code whether or not you are up to the challenge of challenging its constitutionality.

NOT A SUBSTITUTE FOR AN ATTORNEY

*Not a Substitute for an Attorney

WE CANNOT GUARANTEE RESULTS. OUR MATERIALS AND MOTIONS ARE NOT FILE READY. WE ARE NOT ATTORNEYS, ARE NOT A SUBSTITUTE FOR AN ATTORNEY, AND DO NOT PRACTICE LAW. THE INFORMATION ON THIS SITE IS EDUCATIONAL REGARDING MATTERS OF PUBLIC IMPORTANCE. AS SUCH, IT IS PROTECTED FREE SPEECH UNDER THE FIRST AMENDMENT. FIX FAMILY COURTS’ PARENT COMPANY IS INCORPORATED IN TEXAS. THE AUTHORS OF THIS SITE RESIDE IN TEXAS. THIS CONTENT IS FREE SPEECH PROTECTED BY ARTICLE 1, SECTION 8 OF THE TEXAS CONSTITUTION. PLEASE USE THIS MATERIAL FOR ITS INTENDED EDUCATIONAL PURPOSE AND CONSULT AN ATTORNEY FOR ALL LEGAL OPINIONS REGARDING YOUR SPECIFIC CASE. IF YOU PURSUE YOUR CASE PRO SE, YOU TAKE FULL RESPONSIBILITY FOR UNDERSTANDING THE LAW IN YOUR STATE AND THE VALIDITY OF ANY INFORMATION PROVIDED HERE.