Court Has Broad Discretion in Determining Texas Custody

The court’s primary consideration in determining Texas custody is the best interest of the child.  Tex. Fam. Code § 153.002.  There is a rebuttable presumption that the parents being named joint managing conservators is in the child’s best interest.  Tex. Fam. Code § 153.131.  When a court names parents joint managing conservators, it must also designate which of them has the exclusive right to determine the child’s primary residence.  Custody matters are highly fact-based, and the court generally has broad discretion in determining the child’s best interest and deciding who will have the exclusive right to determine the child’s primary residence.  A father recently challenged the custody, child support, and property division in his divorce.


The parties separated after fourteen years of marriage.  They had two children together.  The trial court named both parents joint managing conservators with the mother having the exclusive rights to designate the children’s primary residence, receive child support, and make educational decisions.

According to the appeals court, the record showed that one of the children said she would “rather stay with mom.”   The mother testified she had been the parent who took care of the children when they were sick, took them to medical appointments, prepared food, helped with homework, and put them to bed.  She testified she thought it was in the children’s best interest to live with her.  She alleged the father drank too much around the children.

The father testified that during the marriage, he had picked the children up from school and daycare, took them to their doctor’s appointments, stayed with them when they were sick when the mother was working, and did the majority of the cleaning. His mother testified she had taken the children to the doctor several times.  She expressed concerns about the mother taking care of their medical needs, as well as their diet.  She testified the home was “messy.”

There was testimony that the mother had a good relationship with the children and testimony that the father was a good father. Witnesses testified they had not seen the father drink excessively.

On appeal, the father argued the trial court had insufficient evidence to support its custody determination.

The appeals court summed up that each parent provided evidence of being a good parent while attacking the other’s parenting skills.  Both presented evidence of the other’s alcohol use.  The appeals court concluded the trial court had sufficient evidence to exercise its discretion and that the evidence was sufficient to support its findings.

The father also argued the trial court abused its discretion by ordering child support.  Because his challenge to the child support award was based on his argument that the trial court erred in its custody determination, the appeals court rejected it as well.

Property Division

The father also argued the trial court abused its discretion in awarding the home to the mother.  The father argued that he had contracted for and supervised construction of the house.  He also argued he did the outdoor maintenance and 90% of the indoor cleaning.  He further argued there was evidence the mother had not kept the home clean or maintained it.

The appeals court concluded it was within the court’s discretion to award the home to the mother.  The appeals court further concluded that the property division was not so unjust and unfair as to be an abuse of discretion.

The father also argued the trial court abused its discretion in characterizing certain property as community property, and the mother conceded.  The appeals court modified the property division to characterize that property as the husband’s separate property.

The appeals court then affirmed the judgment as modified.

Seek Guidance from an Experienced Family Law Attorney

This case shows the broad discretion of the court in determining custody in the face of conflicting evidence.  Because of that broad discretion, it can be difficult to overturn a custody determination on appeal.  If you are facing a custody dispute, a skilled Texas child custody lawyer can help you present a strong case and fight for your children.  Contact McClure Law Group at 214.692.8200 for a consultation.

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