Joint Custody: Physical and Legal


If you are currently enduring the lengthy process of a divorce, then it is not uncommon to have questions. For many parents, there can be a lot of confusion about custody and the legal jargon associated with it. Here at Tessmer Law Firm, we want to help you understand the ins and outs of the process in Texas!


In Texas, the law presumes that you and your spouse will be “joint managing conservators.” This means that both parents will share parental rights and obligations. Attorneys and judges use the word “conservatorship” when referring to child custody, and “possession” when referring to visitation. In the case of joint custody, both parents will have conservatorship of the child. Under Texas law, there are two types of joint conservatorships: physical and legal.


Physical custody determines who your child will live with on a day-to-day basis. Generally, parents are awarded 50/50 custody as it is seen as being in the best interest of the child. This style of conservatorship means that your child will be living with Mom and Dad for the same number of days each month. That being said, 50/50 is not always guaranteed and there are situations where one parent is given primary physical custody. In these situations, the other parent is given secondary physical custody or no custody at all. Importantly, these cases should be seen as the exception rather than the rule. A parenting plan will be developed to determine how long your child will stay with each parent.

The court will consider several factors when determining physical custody. One of the factors includes which parent has historically been the primary caretaker. The court may ask some questions to determine this, which could include asking who cooks dinner for your child, helps with homework, or gets them dressed in the mornings. Additionally, the court will determine which parent has the resources to support and care for the child’s physical/emotional needs. The court may ask for your child’s preference as to which parent he/she would prefer to live with. Of course, this is only if they are old enough to make an informed decision.


Legal custody determines who will make the important decisions for your child. Important decisions can include but are not limited to, the child’s education, health, and religion. In most states, it is common for parents to be awarded joint legal custody. Joint legal custody means that both you and your ex-spouse will have a say in determining what is in the best interest of your child. These decisions may include choosing to put your child on medication or changing their school. However, the courts acknowledge that it is likely that the parent whom your child spends more time with may have a bigger influence in this area. The courts often determine this parent to be the one with a greater understanding of the child’s wishes.


It is important to remember that whatever decision a court makes regarding the custody of your child is not permanent. Custody agreements can be modified upon an agreement reached by both parties or by petitioning the court for a modification. Either way, you will be pleased to know that your situation can still be changed. Imperatively, if you are unsatisfied and would like to change your agreement, then it is wise to retain a lawyer to help you. We would be more than happy to assist you through this change at Tessmer Law Firm. If you believe that your child would benefit from a new custody agreement, please call our office to schedule a consultation.

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