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Texas — Family Code §§ 153.001 + 153.002 + 153.134 — Best interests + conservatorship (verbatim)

Jurisdiction: United States — Texas · Citation: Tex. Fam. Code §§ 153.001, 153.002, 153.134 · Authoritative source: statutes.capitol.texas.gov — Family Code Ch. 153

The conservatorship framework of Texas family law. Texas operates the doctrinally distinctive conservatorship terminology rather than the custody framework used by most other US states — distinguishing between managing conservator (custodial role) and possessory conservator (visitation role). The framework establishes: - § 153.001 — public policy: frequent and continuing contact + safe, stable, nonviolent environment + encourage parents to share - § 153.002 — best interests as primary consideration - § 153.134 — joint managing conservatorship factors (the operative welfare-checklist)

The provisions parallel other US state-level frameworks: - California Family Code §§ 3011 + 3020 + 3040 - Tennessee TCA § 36-6-106 + § 36-6-404 - Florida Statute § 61.13 time-sharing factors - Washington RCW § 26.09.187 parenting plan criteria

Texas is doctrinally distinctive among US states because the conservatorship terminology + § 153.001's frequent and continuing contact public policy + § 153.134's express friendly-parent factor at (b)(3) produce a structurally PA-aware framework. The Texas Supreme Court's Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) established the nine-factor welfare-checklist (the "Holley factors") that operates alongside the statutory framework as the operational welfare-assessment standard.

Verbatim text (current consolidated)

§ 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.

§ 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.

§ 153.134 — Court-ordered joint managing conservatorship

(a) If a written agreed parenting plan is not filed with the court, the court may render an order appointing the parents joint managing conservators only if the appointment is in the best interest of the child, considering the following factors:

(1) whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators;

(2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest;

(3) whether each parent can encourage and accept a positive relationship between the child and the other parent;

(4) whether both parents participated in child rearing before the filing of the suit;

(5) the geographical proximity of the parents' residences;

(6) if the child is 12 years of age or older, the child's preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child; and

(7) any other relevant factor.

(b) In rendering an order appointing joint managing conservators, the court shall:

(1) designate the conservator who has the exclusive right to determine the primary residence of the child and:

(A) establish, until modified by further order, a geographic area within which the conservator shall maintain the child's primary residence; or

(B) specify that the conservator may determine the child's primary residence without regard to geographic location;

(2) specify the rights and duties of each parent regarding the child's physical care, support, and education;

(3) include provisions to minimize disruption of the child's education, daily routine, and association with friends;

(4) allocate between the parents, independently, jointly, or exclusively, the remaining rights and duties of a parent provided by Chapter 151; and

(5) if feasible, recommend that the parties use an alternative dispute resolution method before requesting enforcement or modification of the terms and conditions of the joint conservatorship order through litigation, except in an emergency.

Why this matters for PA

  • The § 153.001(a)(1) frequent-and-continuing-contact public policy. 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. This is doctrinally distinctive — Texas codifies the frequent and continuing contact principle as state public policy, not just as a welfare consideration. The who have shown the ability to act in the best interest of the child qualifier is critical:
  • It is not a blanket frequent-contact preference
  • It is conditioned on the parent's demonstrated ability to act in the best interest
  • Sustained alienating conduct demonstrates the opposite of acting in the child's best interest
  • In PA-pattern cases this provides express anchor for treating the alienating parent's conduct as displacing the frequent-and-continuing-contact preference from operating in their favor
  • The § 153.001(a)(2) safety floor. Provide a safe, stable, and nonviolent environment for the child. The safety floor operates as a structural constraint on the frequent-contact preference — DV findings can override frequent-contact policy. In PA-pattern cases the safety floor operates bidirectionally:
  • Against genuinely violent parents
  • Against the alienating-parent's psychological-abuse pattern (the safety floor includes psychological safety)
  • The § 153.001(a)(3) shared-rights encouragement. Encourage parents to share in the rights and duties of raising their child. This is the Texas joint-management codification — public policy encourages shared rights and duties.
  • The § 153.001(b) no-conditioning-on-child-support clause. 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. This is doctrinally distinctive — Texas expressly prohibits conditioning possession/access on child support. The provision operates bidirectionally:
  • Protects targeted parents from alienating-parent attempts to weaponize child-support arrears as access-denial justification
  • Protects against the targeted-parent's own non-payment being weaponized
  • The § 153.002 always paramountcy. The best interest of the child shall always be the primary consideration. The always qualifier is doctrinally significant — Texas paramountcy admits no exception. In PA-pattern cases this means welfare assessment cannot be displaced by procedural considerations, statute-of-limitations defenses, or judicial economy considerations.
  • The § 153.134(a)(2) shared-decision-making capacity factor. The ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest. The factor 2 framing is operationally significant — sustained alienating conduct demonstrates structural inability to give first priority to the welfare of the child (because alienating conduct prioritizes the alienating parent's emotional needs over the child's welfare interest in the targeted-parent relationship). The factor also requires reach shared decisions — alienating-parent refusal to engage in shared decision-making engages this factor.
  • The § 153.134(a)(3) — Texas express friendly-parent factor. Whether each parent can encourage and accept a positive relationship between the child and the other parent. This is the doctrinally distinctive Texas express friendly-parent factor — codified as a joint-managing-conservatorship factor. The framing is doctrinally rigorous:
  • Encourage — affirmative positive duty
  • Accept — duty to refrain from rejection
  • Positive relationship — substantive welfare-aware framing
  • Sustained alienating conduct demonstrates structural inability to satisfy factor (a)(3). The structural Texas parallel to:
  • Canadian Divorce Act s. 16(3)© willingness to support relationship
  • Tennessee TCA § 36-6-106(a)(2) facilitate and encourage
  • Korean Civil Act art. 909-2(3)(3) willingness to support relationship
  • The § 153.134(a)(4) — historical-participation factor. Whether both parents participated in child rearing before the filing of the suit. The historical-participation factor operates bidirectionally in PA-pattern cases:
  • Protects against alienating-parent claims that recent care-pattern (which the alienation produced) reflects historical participation
  • Provides structural anchor for documenting departure from historical practice
  • The § 153.134(a)(6) — age-12 child preference threshold. If the child is 12 years of age or older, the child's preference, if any, regarding the person to have the exclusive right to designate the primary residence. The age-12 threshold is structurally similar to Tennessee TCA § 36-6-106(a)(13) and Spain CC art. 156(2). The if any qualifier preserves judicial flexibility — the child can decline to express preference. In PA-pattern cases the autonomy-of-formation analysis applies (the preference must be the child's own, not alienation-induced).
  • The § 153.134(b)(1) — primary-residence-conservator designation. Even in joint managing conservatorship, the court must designate the conservator who has the exclusive right to determine the primary residence. This is doctrinally significant — Texas joint conservatorship is not 50/50 residence; one conservator has primary-residence authority. In PA-pattern cases this provides structural pathway for designating the targeted parent as primary-residence conservator where the alienating parent's conduct demonstrates incapacity.
  • The Holley factors framework. The Texas Supreme Court's Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), established the nine-factor welfare-checklist:
  • (1) child's desires
  • (2) emotional and physical needs now and in the future
  • (3) emotional and physical danger now and in the future
  • (4) parental abilities of the individuals seeking custody
  • (5) programs available to assist these individuals
  • (6) plans held by the individuals seeking custody
  • (7) stability of the proposed home or homes
  • (8) acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one
  • (9) any excuse for the acts or omissions of the parent
  • The Holley factors operate alongside § 153.134(a) as the operational welfare-assessment standard. The factor (8) acts or omissions … indicating the existing parent-child relationship is not a proper one is operationally engaged in PA-pattern cases — sustained alienating conduct constitutes such acts or omissions.

Procedural application

  • The competent court is the District Court (Family Law Division in counties with dedicated family courts) or County Court at Law depending on county structure
  • Social Study under Tex. Fam. Code § 107.051 provides multidisciplinary welfare assessment
  • Amicus attorney under § 107.001 + Attorney ad litem under § 107.0125 provide child-voice representation
  • Mediation is structurally encouraged under § 153.0071 and frequently court-ordered
  • The child is heard under § 153.009 (12+ for residence preference; younger children with court permission)
  • Appellate review to the Texas Court of Appeals (14 regional courts) + cassation to the Texas Supreme Court

Use in alienating-conduct cases

  • The Texas Supreme Court's Holley factors framework provides the operational welfare-assessment standard
  • Texas Courts of Appeals have applied § 153.134(a)(3) friendly-parent factor in PA-pattern cases — see In re Marriage of Gerty, 265 S.W.3d 252 (Tex. App.—Houston [1st Dist.] 2008); In re A.E.D., 433 S.W.3d 102 (Tex. App.—Eastland 2014); and following authorities
  • Where alienating conduct is established, Texas courts can:
  • First-tier: order mediation under § 153.0071
  • Second-tier: modify possession schedule under § 153.317 (standard possession order modification)
  • Third-tier: modify designation of primary-residence conservator under § 156.101
  • Apex-tier: terminate parental rights under Chapter 161 (rarely used; typically reserved for cases beyond PA-pattern alone)
  • The § 153.134(a)(3) express friendly-parent factor provides direct anchor for treating sustained alienating conduct as engaging the joint-managing-conservatorship analysis
  • The § 153.001(a)(1) frequent and continuing contact … shown the ability to act in the best interest qualifier provides structural protection — the alienating parent's lack of best-interest conduct displaces the contact-preference operating in their favor

Cross-reference

Comparative cross-references