Primary Custody in Texas



President at Schwager Firm
Welcome to Schwager Law Firm from our Founder and Principal, Candice Leonard Schwager. Candice is an experienced litigation attorney with a wide array of experience, including Family Law, Probate, Guardianship, Civil Rights, Contractual disputes, personal injury, products liability, & school law, representing children with disabilities. The Founder & President of two Non-profits for special needs, the elderly and disabled, Candice's practice is a diverse combination of people from al walks of life. Candice's public interest work has been recognized by the Texas State Bar Pro Bono College 7 years in a row, with thousands of hours donated to low income Texans who would not otherwise have access to justice. A 1997 Cum Laude Honors Graduate of South Texas College of Law, Law Review Editor, Brief Writer for STCL's award winning National Moot Court Team, and Research/Writing Assistant to W. David East, Associate Dean, Candice believes in excellence and has been blessed with the opportunity be mentored by the best lawyers in the State of Texas for 2 decades.

Since 1997, Candice Schwager has been serving Texas with the single purpose of making a difference. Candice is currently offering a complimentary 30 minute consultation to those in need of legal representation. Call (832) 315 - 8489 or e-mail

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Parents frequently asked “How is primary custody determined by the Courts?” The term “primary custody” is commonly used jargon to describe the Parent with the exclusive right to designate the child’s primary residence, since parents will be deemed Joint Managing Conservators in most cases (“JMC”). Joint Managing Conservator denotes the fact that both parents have the same rights and duties, with the exception of the parent who will provide the child’s residence. The Texas Family Code contains a rebuttable presumption that it is in the best interest of the child to have both parents co-parent and Courts rely upon the

Standard Possession Order in most cases.

Circumstances that might cause a Court to deviate from a Standard Possession Order or Joint Managing Conservatorship incude: prior family violence towards any member of the family, whether either Parent has a history of abuse or neglect (both of which would prohibit a JMC), whether the Parents can peacefully co-parents, and other factors that might render a Parent unfit to serve as JMC. See Tex. Family Code § 153.004. The factors generally considered include:
The parent’s ability to give first priority to the child’s welfare;
The parent’s ability to reach shared decisions in the child’s best interest;
The parent’s ability to encourage and accept a positive relationship between the child and the other parent;
The parent’s role/participation in the child’s rearing;
Whether appointment of the parent as JMC will benefit the child’s physical, psychological and emotional needs and development; and
Where the parents live in relation to one another.
See Tex. Family Code § 153.134.

If one parent has clearly been uninvolved in caring for the child’s basic needs and upbringing, has not been active in the child’s daily activities and schooling, disparages the other parent or actively discourages the child from a relationship with the other parent, abuses alcohol or other substances (legal or illegal), has frequent emotional outbursts, demonstrates lack of self-control, or otherwise shows an inability to exercise good parental judgment, the court is less likely to appoint that parent as a JMC, and will instead consider granting “primary custody” to the other parent.