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Custody: Being Named Primary

Custody orders list the rights and duties of the parents, grandparents, or others that have been named as Conservators.

 

The most important right is that of “primary.” 

 

In fact, in this day and age, a custody battle is a battle over "primary." In truth, the designation of primary is actually the holder of the "exclusive right to designate the primary residence of the child." See, Texas Family Code § 153.132(1).  The person or parent holding this right is generally referred to as the primary, the primary parent, or the primary conservator. In the garden-variety case, the primary has the child more often than the non-primary, has the exclusive important rights, and receives child support.

 

The flip side of the primary designation is known as a residency restriction, geographic restriction, or domicile restriction. This is a restriction on the unfettered right to designate the primary residence of the child.  See, Texas Family Code § 153.134(b)(1)(A) and (B); see also, Sanchez v. Sanchez, 2007 Tex. App. LEXIS 5166 (Tex. App. San Antonio July 3, 2007) (“One of the rights bestowed upon a sole managing conservator is the exclusive right to determine primary residence of the child. TEX. FAM. CODE ANN. § 153.132(1) Any residency restriction imposed on this right is within the trial court's discretion based on the best interest of the child.”).  Typically a provision will read "[parent] has the exclusive right to designate the primary residence of the child within Tarrant and contiguous counties." Although technically this is only a restriction on the residence of the child, it effectively ends up being a restriction on the primary parent.

 

Under fairly recent changes to the Texas Family Code, it is not necessary to name either parent as "primary," as long as the parties agree on the parenting plan.  Texas Family Code § 153.133 (c). 

 

If the parties cannot agree, however, and the case goes to trial, the court must name one party or the other as the primary parent. Often, from a strategy standpoint, the best move is to attempt to prevent the court from naming either parent as primary during the temporary orders phase of the case. Being on the losing end of the temporary primary designation can set one party up for an extreme uphill battle at final.  The argument is typically made that, “this is what has been done, and there haven’t been any ‘problems,’ so there’s no reason to change.

 

Understanding the importance of the Primary designation and what it takes to get that designation is critical to handling a Custody Case in Texas.