What Does “Primary Custody” Mean in Texas?
Commonly, our clients who are facing contested custody cases will tell us they want "primary custody" or "sole custody" of their children. You'll often even hear lawyers and even judges use the same phrases. But you could read the Texas Family Code (the source of most family law in Texas), front-to-back, and you would never see the terms "primary custody" or "sole custody".
So, when someone uses the term “primary custody”…..what does that actually mean?
To answer that question, we need to first talk about the terms the Family Code actually does use. 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 that (usually) a parent has over his or her child. For instance, a “conservator” of a child will have the right to consent to medical treatment for the child, or to make decisions about the child’s education. "Possession" is more straightforward: it just refers to when a parent has the right to have the child in his or her physical possession.
The Family Code tells judges to presume that it is in the best interest of a child for both of his or her parents to be appointed as "joint managing conservators". See Texas Family Code §153.131(b). When both parents are appointed as joint managing conservators, that means that each of them will have some decision-making rights for the child.
But, both parents will probably not have exactly the same set of rights. The Family Code tells the judge that, when appointing the parents as joint managing conservators, the court “shall: (1) designate the conservator who has the exclusive right to designate the primary residence of the child”. See Texas Family Code §153.134(b)(1).
This use of the word “primary” is where the term “primary custody” comes from. When lawyers and judges use the term “primary custody”, that’s shorthand for “the parent with the exclusive right to designate the child’s primary residence”.
Okay, but what does that mean? Well, it means that the child will spend most of his or her time in the home of the “primary” parent (it will probably come as no shock that, when a parent is given the “exclusive right to designate the child’s primary residence”…..they choose their own residence). And the parent who does not have the right to designate the child’s primary residence (often referred to as the “non-primary parent” – an awful term) is awarded (at least in most cases) a possession schedule known as the “Standard Possession Order” (also often referred to as the “SPO”). See Texas Family Code Sec. 153.252.
The SPO schedule is (in very general terms) the following:
1. the first, third and fifth (if there is one) weekend of each month;
2. every Thursday evening during the school year;
3. an extended possession period of 30 days during the summer; and
4. half of the Christmas school holiday each year, the Thanksgiving school holiday every other year, and either Mother’s Day or Father’s Day weekend each year.
So, to answer the original question, when someone uses the phrase “primary custody”, they are referring to the parent who will have possession of the child the majority of the time (though in most cases the “non-primary” parent will still have possession of the child for a substantial period of time…..especially if he or she chooses to exercise the Expanded SPO – more about that in another post later).
What “primary custody” does not mean is that the “primary” parent necessarily gets to unilaterally make all decisions about the child (in fact, that’s usually not the case). When the court gives one parent all the decision-making rights for the child, that parent is called the “sole managing conservator” (which is, of course, where the term “sole custody” comes from). It is pretty unusual for a court to appoint a parent as a “sole managing conservator”, and it typically only happens in situations where there has been family violence, or significant drug use by a parent, or perhaps where the parent has just dropped out of a child’s life for an extended period of time.
In the vast majority of cases, the parents of the child will be appointed as “joint managing conservators”, meaning they will both have some input and decision-making rights over the child, and the fight (if there is one) will be over which parent has physical possession of the child the majority of the time. How big a majority of the time? I’ll address that in another post soon discussing the SPO and the Expanded SPO.