The National Family Law Policy Center puts together guides to assist legislators with understanding sound public policy. Part of this process involves pooling expert resources to create information packets. The following packet is to assist legislators with improving policy in their state. Donations are what support these projects. Please donate today.
TEXAS LEGISLATIVE INFORMATION PACKET
EQUAL PROTECTION FOR CHILDREN
~ A REFORM LONG OVERDUE ~
“The scientific research documented in 40 studies combined with the consensus of 112 social scientists prove that children desire associating and bonding with both their mothers and their fathers, and children excel and prosper when both parents are equal contributors to their upbringing and well-being, even when the parents live in two separate homes. We assert that the constitution protects a child from having a parent taken without cause and without justification.”
…with Special Thanks to Texas TFRM and ALFRA
● Dr. Richard Warshak, The University of Texas
"Parenting plans that provide children with contact no more than six days per month with a parent, and require the children to wait more than a week between contacts, tax the parent-child relationships. This type of limited access schedule risks compromising the foundation of the parent-child bond. It deprives children of the type of relationship and contact that most children want with both parents. The research supports the growing trend of statutory law and case law that encourages maximizing children’s time with both parents. This may be even more important for young children to lay a strong foundation for their relationships with their fathers and to foster security in those relationships."
● 112 Social Scientists:
“This is ground-breaking to get 112 social scientists to agree – and they agreed that based on the scientific literature, shared parenting should be the norm for parenting plans for children of all ages.” –Dr. Linda Nielsen, Wake Forrest University.
● Senior Texas Appellate Judge:
“I write separately to express my belief that the standards currently used in making and reviewing orders that have the effect of limiting a parent’s access to his or her children do not reflect the legislative mandate regarding parental access, nor do they adequately respect the scope of the liberty interest enjoyed by a parent in rearing his or her own children. Because of the gravity of the constitutional rights and interests at stake in such proceedings, and because the current standard is based upon outdated notions of parenting that predate the family code and run counter to the legislature’s stated policy concerning children’s best interests, trial courts should justify deviation from maximum feasible time with both parents by clear and convincing evidence and make factual findings, and appellate courts should carefully review those findings…..Sadly, in many cases, trial courts attempting to dispose of messy divorces as equitably and expeditiously as possible simply automatically adopt the minimum outlined in the standard possession order without considering whether that order will impose limits upon possession and access in excess of those necessary to protect the best interests of the children….. “ --Justice David Puryear, In re JRD, 169 SW 3d 740 - Tex: Court of Appeals, 3rd Dist. 2005, Concurring Opinion.
● Chief Justice, Texas Appellate Judge:
“Whatever latitude courts have in setting possession periods, they do not have the discretion to automatically adopt the minimum and ignore the legislature’s explicit directive in section 153.193 to allow maximum feasible time with both parents unless doing otherwise would impair the children’s interests.” --Chief Justice Massey, In re JRD, 169 SW 3d 740 - Tex: Court of Appeals, 3rd Dist. 2005.
● Federal District Court Judge:
The judge is "To safeguard the right of parents to raise their children as they see fit,
free of government intrusion, except in cases of neglect and abandonment,
is to safeguard each child's need for continuity." -- Doe v. Irwin, 441 F. Supp. 1247 (Dist. Court, WD Michigan 1977) AT 1256, 1257”
Sec. 153.252. REBUTTABLE PRESUMPTION. In a suit, there is a rebuttable presumption that the standard possession order in Subchapter F: (1) provides reasonable minimum possession of a child for a parent named as a possessory conservator or joint managing conservator; and (2) is in the best interest of the child.
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TEXAS LEGISLATIVE INFORMATION PACKET (continued)
Court of Appeals of Texas, Austin.
In the Interest of J.R.D. and T.C.D.
Decided: July 14, 2005
Amount of Contact with Child
Received all payments (percent)
Child had no contact with the other parent in 2013
Court Ordered Joint Custody
Each year, approximately 100,000 children in Texas are subject to orders that restrict them to a minimum amount of time that they can see and spend time with their other fit parent. In 2015, Texas had approximately 2.4 million kids living in a single parent household. Many of these children had a parent taken from them where the parent did not do anything wrong. The perception within society is that the court considers the best interests of the child and makes these decisions for the greater good. When this isn’t the case however, the parent and child can be made to feel very helpless with no remedy. The Texas Family Code does not correspond with American family values concerning parental involvement in their children’s lives and protection of fundamental family rights between two fit and involved parents. The social science also supports that affecting the integrity of each child-parent relationship without proper caution is possibly the most destructive thing that the court could do to a child. A child of divorce or separated parents could be left to spend a lifetime trying to overcome the loss and deficit of the absent parent.
Did you know?
According to the Annie E. Casey Foundation, Texas ranked 43rd among the 50 states in overall child well-being based on measures in four categories:
· Economic well-being
· Family & community
According to several surveys and studies…
…are children with limited or no contact with their father. (5/6 non-custodial parents are fathers)
The number of custodial fathers has not changed since 1993 (U.S. Census Bureau).
Number of Custodial Parents  (U.S. Census Bureau)
©2017 National Family Law Policy Center
In 2015 approximately 1.9 Million children lived in single-parent homes.
According to the summary of 40 Studies on Outcomes for Children, shared parenting can improve Texas’ overall child well-being based on measures in five categories:**
§ Academic or cognitive outcomes, which include school grades and scores on tests of cognitive development such as language skills;
§ Emotional or psychological outcomes, which include feeling depressed, anxious, or dissatisfied with their lives;
§ Behavioral problems, which include aggression or delinquency, difficult or unmanageable behavior at home or school, hyperactivity, and drug or alcohol use;
§ Physical health and smoking, which also include stress-related illnesses such as stomach aches and sleep disturbances; and
§ Quality of father-child relationship, which includes how well they communicate and how close they feel to one another.
* Do not confuse the word "shared" or "joint" with "equal". Just as "separate" was not "equal" during the time of school desegregation, "shared" and "joint" is not "equal" in terms of child custody possession policy.
**According to the Annie E. Casey Foundation, Texas ranked 43rdh among the 50 states in overall child well-being.
Title IV-D (child support) cases accounted for 40 percent of the 337,387 family cases filed.
More Parenting time increases child support compliance and decreases the need for enforcement filings.
 Bureau of the Census, CHILD SUPPORT AND ALIMONY: 1989; CURRENT POPULATION REPORTS, Series P-60, No. 173, September 1991 at 7. These figures have held relatively constant over time. The 1995 report found 85% compliance in joint custody cases, 79% compliance where visitation was protected, and 56% compliance where neither joint custody nor visitation was protected. Bureau of the Census, Child Support for Custodial Mothers and Fathers, CURRENT POPULATION REPORTS, Consumer Income, Series P60-187, August 1995.
Standard Possession Order for 2017
Hours in A year
Hours with Non-Custodial Parent
2060 hrs (24%)
Nights in a year
Overnights with non-custodial parent
80 Overnights (22%)
But what if we exclude the month of July? The yearly average amount of time for the non-custodial parent drops to 20% and overnights drop to 16%!!
Modified Standard Possession Order for 2017
Hours in A year
Hours with Non-Custodial Parent
2902 hrs (33%)
Nights in a year
Overnights with non-custodial parent
139 Overnights (38%)
But what if we exclude the month of July? The yearly average amount of time for the non-custodial parent drops to 28% and overnights drop to 33%!!
The most common equal parenting schedule (one week with mom, one week with dad) is only 4-6 transfers per month.
The current standard possession order is 13 exchanges per month.
Dr. Warshak from the University of Texas has published an analysis of four decades of research regarding parenting plans entitled “STEMMING THE TIDE OF MISINFORMATION: INTERNATIONAL CONSENSUS ON SHARED PARENTING AND OVERNIGHTING”. The analysis was endorsed by 112 other researchers indicating a consensus among researchers condemning our current presumption that a child should spend the majority of time with only one of their parents.
Dr Linda Nielsen from Wake Forrest University has published “Shared physical custody: Summary of 40 studies on outcomes for children.” Where she determined from 40 studies that “Overall the children in shared parenting families had better outcomes on measures of emotional, behavioral, and psychological well-being, as well as better physical health and better relationships with their fathers and their mothers, benefits that remained even when there were high levels of conflict between their parents.”
Additionally, she is about to release similar study “Shared physical custody versus sole physical custody: Summary of 51 studies on outcomes for children” where she finds that “In 42 of the 51 studies, children who lived in shared physical custody families had better outcomes than children who lived in sole physical custody families.”.
5/6 noncustodial parents are fathers
6,474,144 Texans have a mental illness. This number includes over 5 million adults and over 1.4 million children. (The U.S. Surgeon General)
211,234 Texans Received Services in the Texas mental health system in 2012: (Texas Department of State Health Services)
$374,077,387 Funding for Individuals Person Served by the Texas Mental Health System in 2012 (Texas Department of State Health Services)
(Texas has none!!)
“Consistent with the child's best interests in section 25-403 and sections 25-403.03, 25-403.04 and 25-403.05, the court shall adopt a parenting plan that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time. The court shall not prefer a parent's proposed plan because of the parent's or child's gender.”
“.. the court must consider and evaluate all relevant factors, including: …..(10) the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent…”
“(c) The court may award shared custody to both parents if shared custody is determined by the court to be in the best interests of the child. An award of shared custody shall assure that the child has frequent and continuing contact with each parent to the maximum extent possible.”
“Prior to awarding the appropriate custody arrangement in the best interest of the child, the court shall consider each of the following as follows:
(1) Joint physical and joint legal custody to both parents, which shall not be denied solely for the reason that one parent opposes a joint physical and joint legal custody award. The residence of one of the parents shall be designated as the address of the child for mailing and educational purposes”
“(1) Custody shall be awarded as follows according to the best interests of the child:
(a) Physical and legal custody to both parents jointly pursuant to subsections (2) through (7).”
“Custody of a minor child may be placed with both parents on a joint legal custody or joint physical custody basis, or both.”
“If the court awards joint legal custody, it may also order joint physical custody in such proportions as are in the best interests of the child, notwithstanding the objection of either parent.”
“(1) The court may order joint legal custody or joint physical custody or both if one or both parents have filed a parenting plan in accordance with Section 30-3-10.8 and it determines that joint legal custody or joint physical custody or both is in the best interest of the child.
"Joint custody" means an order awarding custody of the minor child or children to both parents and providing that physical custody shall be shared by the parents in such a way as to assure the child or children of frequent and continuing contact with both parents. The court may award either joint physical custody or joint legal custody or both as between the parents or parties as the court determines is for the best interests of the minor child or children. If the court declines to enter an order awarding joint custody, the court shall state in its decision the reasons for denial of an award of joint custody.”
“The court may provide for joint custody of the child by the parties. The court, insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents after the parents have separated or dissolved the marriage”
“If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award.
In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly”
“A modification of parenting time which increases a parent's percentage of parenting time to an amount that is between 45.1 to 54.9 percent parenting time is not a restriction of the other parent's parenting time.”
"Henceforth the rights and responsibilities of the parents in the absence of misconduct shall be equal, and one parent shall be as fully entitled to the custody, control and earnings of the children as the other parent, and in case of one parent's death, the other parent shall come into full and complete control of the children and their estate."
AN ACT relating to parents; providing for a parental right to direct the upbringing, education and care of a child.
Section 2. This act is effective July 1, 2017.
14-2-206 Protection of parental rights -
(a) The liberty of a parent to direct the upbringing,
education and care of the parent's child is a fundamental
(b) The state, or any agency or political subdivision
of the state, shall not infringe the parental right as
provided under this section without demonstrating that the
interest of the government as applied to the parent or
child is a compelling state interest addressed by the least
(c) This section shall apply to any state or local
law or ordinance and its implementation whether that law or
ordinance was adopted prior to or after the effective date
of this section. Any statute adopted after the effective
date of this section is subject to this section unless it
explicitly states that this section does not apply by
Nothing in this section shall be deemed to apply
to a parent whose parental rights have been judicially
Section 2. This act is effective July 1, 2017. 21
“This bill would create a rebuttable presumption that both parents are fit to make parenting decisions and to have maximum parenting time with their child.”
“That section 46b-56a of the general statutes be amended to provide that in cases involving the custody of a child, there shall be a presumption that a shared parenting arrangement that provides the parents with equal access to the child is in the best interests of the child, unless the court is provided with overwhelming evidence to the contrary.”
“In any proceeding dealing with a dispute between the parents of a child over the parental rights and responsibilities over a child, there is a presumption that each parent is fit to care for the child and to make with the other parent joint decisions for the child. In any proceeding in which that presumption is not rebutted, if requested by either parent, the court may not apply the best interest analysis mandated in subsection 1 of this section and shall award each parent equal decisionmaking responsibility and equal parenting time and residential responsibility.”
“If joint legal custody is awarded, pursuant to § 25-5-7.1, there shall be a rebuttable presumption that both parents have joint physical custody of their children. Joint physical custody of the children is defined as equal time-sharing. The burden of overcoming the presumption rests on the parent challenging the presumption. The presumption may be overcome by demonstrating that joint physical custody would not be in the best interest of the children by weighing the factors set forth in §§ 25-4A-21 to 25-4A-27, inclusive, or by one”
“If joint legal custody is awarded to both parents, the court shall award joint physical care to both joint custodial parents upon the request of either parent, unless the court determines that joint physical care is not in the best interest of the child.”
“In making an order for temporary custody, there shall be a presumption that the parents or a de facto custodian joined under subsection (7) of this section shall have temporary joint custody and shall share equally in 16 parenting time.”
“ There shall be a rebuttable presumption that shared parenting and shared residential rights and responsibilities are in the best interest of the child or children…..
“Shared parenting” means an arrangement by which:
(a) A child has comparable time with each parent appropriate to:
(1) The developmental age and status of the child;
(2) The child’s routine schedule of school and other activities;
(3) Holidays and other child-centered special events; and
(4) The parent’s availability to fulfill parenting responsibilities.
(b) The child’s material, developmental, educational, and emotional needs are provided by the parents according to the parents’ individual capability.”
“SHALL award the natural guardianship,
charge and custody of such child to [either parent] BOTH PARENTS, IN THE ABSENCE OF AN ALLEGATION THAT SUCH SHARED PARENTING WOULD BE DETRIMENTAL TO SUCH CHILD”
“The provisions of this act establish a presumption, affecting the burden of proof, that shared parenting is in the best interests of minor children.”
“It is the policy of this state to: (6) Presume, subject to rebuttal, that equal parenting time is in the best interests of the child.”
“(c) If the court renders an order appointing the parents joint managing conservators under this section, the court shall enter a possession order under Subchapter F-1 that provides for equal parenting”
“To the extent that it is reasonable and in the best interests of the 6 child, the court shall order shared parental rights and responsibilities and equal 7 parent-child contact.”
“There is a presumption that it is in the best interest of the child p. 3 HB 1554 1 to establish an equal residential schedule that provides each parent with equal time and contact with the child unless…”
“The court shall consider granting shared physical and shared legal custody in cases where the parents do not agree to shared custody. If the court does not grant shared custody under this subsection, the court shall cite clear and convincing evidence that shared custody is unreasonable and not in the best interest of the child to the extent that the legal custodial relationship between the child and a parent should be severed.”
I am frequently invited to present research seminars to judges, lawyers, mental health workers and legislative committees who are interested in what the empirical studies have concluded about the advantages or disadvantages to children who live in shared physical custody families.
In my peer reviewed academic journal articles, I have summarized and critiqued all of the existing studies published in English in academic journals that have compared the outcomes for children in shared physical custody to the outcomes for children in sole physical custody. In these research studies “shared physical custody” means that the children live year-round at least 35% and usually 50% of the time with each parent. In contrast, “sole physical custody” means that the children live primarily or exclusively with one parent and spend less than 35% of the time with their other parent.
The children’s well-being in these studies is measured by standardized instruments and is then assessed using various statistical procedures. The outcomes that have been studied include: academic performance, emotional and psychological problems (primarily depression and anxiety), physical health, stress related health problems (such as insomnia and stomach aches), the quality of the relationships with parents, stepparents and grandparents, behavioral problems, self-esteem and life satisfaction, and the use of drugs, alcohol, or nicotine.
In 42 of the 51 studies, children who lived in shared physical custody families had better outcomes than children who lived in sole physical custody families. In 4 of the 51 studies the outcomes were mixed, meaning that children in shared physical custody did better on some outcomes and worse on others. In 5 of the 51 studies, the children did equally well in both types of families. It is important to note that, in the studies that considered family income and parental conflict before comparing the children’s outcomes, children in the shared physical custody families still had better outcomes.
Please email me if you would like a copy of any of my research articles.
Nielsen, L. (2011). Shared parenting after divorce: A review of shared residential parenting research. Journal of Divorce and Remarriage, 52, 586-609.
Nielsen, L. (2013a). Shared residential custody: A recent research review (part one). American Journal of Family Law, 27, 61-72.
Nielsen, L. (2013b). Shared residential custody: A recent research review (part two). American Journal of Family Law, 27, 123-137.
Nielsen, L. (2014a). Parenting plans for infants, toddlers and preschoolers: Research and issues. Journal of Divorce and Remarriage, 55, 315-333.
Nielsen, L. (2014b). Shared physical custody: Summary of 40 studies on outcomes for children. Journal of Divorce & Remarriage, 55, 613-635.
Nielsen, L. (2014c). Woozles: Their role in custody law reform, parenting plans and family court. Psychology, Public Policy and Law, 20, 164-180.
Nielsen, L. (2015a). Pop goes the woozle: Being misled by data related to child custody and parenting plans. Journal of Divorce and Remarriage, 56, 595-633.
Nielsen, L. (2015b). Shared physical custody: Does it benefit children? Journal of the American Academy of Matrimonial Lawyers, 28, 79-139.
Nielsen, L. (2017a). Re-examining the research on parental conflict, co-parenting and custody arrangements. Psychology, Public Policy and Law, in press.
Nielsen, L. (2017b). Shared physical custody versus sole physical custody: Summary of 51 studies on outcomes for children. Under review.
Nielsen, L. (2017c). Shared physical custody: Are children's better outcomes due to higher family income? Under review.