Many Texas couples choose to go through a period of separation before actually filing for divorce. In fact, some couples may even choose separation as an alternative to divorce. For parents, this creates a potentially complicated situation, and it raises an important question: who gets custody during a separation? 

At the Law Office of Ben Carrasco PLLC, we have extensive experience handling complex child custody cases. Our child custody lawyer has helped protect the rights of many parents going through a separation. Here, we explain what Texas parents need to know about the state’s rules and regulations regarding child custody during separation.

Both Parents Retain their Rights During Separation

There is no law that says that married couples must live together, or even interact with each other. Separation is an inherently voluntary arrangement. From the view of the law, a separated couple is still a married couple. This matters because it means that, legally speaking, nothing has changed yet. As such, both parents are assumed to retain full custody rights during their period of separation. No parent gets to be in ‘control’ unless there has been a court order.

Texas Courts Can Enter Temporary Custody Order

While parents both retain custody rights during their separation, they do have the right to seek an emergency child custody order or a temporary child custody order. When parents are going through a legal separation, a Texas court may decide that it is no longer in the best interests of the child for parents to share full custody. This can happen in many different circumstances.

In some cases, a parent may be deemed a danger to the child. When that occurs, a Texas court can issue an emergency child custody order. Emergency orders are generally only granted if the petitioner can demonstrate that their partner presents a real risk to the child’s health, safety, and overall well-being.

In other cases, Texas courts may determine that it is impracticable for parents to share custody during their separation. In these cases, the court may enter a temporary custody/visitation order that will stay in place until the case can be heard and a more permanent arrangement can be reached.

Parents Must Be Ready to Enforce Their Rights

As with most child custody issues, collaborative solutions work best. Of course, not all parents are in a position where they can work effectively with their partner. In this type of situation, you need to be ready to take action to protect your parental rights and your child’s safety.

Under Texas law (FAM § 263.307), all custody and visitation issues will ultimately be determined using the ‘best interests of the child’ standard. You may be entitled to get an emergency or temporary child custody order. Alternatively, you may need to take action to prevent your former partner from improperly denying you your custody rights. Unless there has been a court order, you will not automatically lose your custody and visitation rights during a separation period — even if you moved out of the home. The other parent cannot on their own to deny you custody or visitation.


At the Law Office of Ben Carrasco PLLC, our Austin child custody lawyers are strong, dedicated advocates for parents. We believe that every Texas parent deserves fully personalized legal representation. To get immediate assistance with your case, please contact our Austin law office today.

About the Author
Ben Carrasco is a highly skilled family law attorney based in Austin, Texas, known for his extensive expertise in family law and business litigation. While his primary focus is family law, Ben brings a wealth of experience in litigating diverse business disputes, ranging from breach of contract and collections to business torts, fraud, and real estate matters. In his family law practice, Ben navigates all aspects of the field, including divorce, child custody, support, property division, and more, offering clients expert guidance throughout the litigation process. His legal journey began in complex commercial litigation, initially with a global law firm and later with a prominent Austin-based firm. However, driven by a desire to make a direct impact on people's lives and embrace the human element of the law, Ben transitioned to family law, a decision that has proven to be deeply rewarding. A proud Austin native with roots in California, Ben completed his undergraduate studies at the University of California, Berkeley, before earning his law degree at Stanford Law School, where he excelled in legal writing and served as an associate editor of the Stanford Law and Policy Review.