What does child custody mean in Texas?
Custody is referred to as "conservatorship" under the Texas Family Code. Conservatorship will define the rights and duties that each conservator will have with regard to the child(ren), designate the how certain decisions will be made and by who, as well as, the responsibilities of each conservator with regard to the child.
Conservatorship is not the same as possession, access or visitation.
What are the different types of conservators?
Under the Texas Family Code, it is presumed that it is in the best interest of the child(ren) that the biological parents be appointed "joint managing conservators" (often referred to as "JMCs"). However, if one parent can overcome that rebuttable presumption, then that parent may be appointed a sole managing conservator. If a party is appointed the sole managing conservator, the other parent will be called the possessory conservator.
Who has the right to determine where the children will live if the parents are named Joint Managing Conservators?
If the parents are JMCs, then one of the parents will be designated as the "primary". The primary joint managing conservator will have the exclusive right to designate the primary residence of the child(ren). The primary will usually also have the exclusive right to receive child support.
What are the rights of the parents as conservators?
A sole managing conservator would have the following exclusive rights (other rights and duties are not listed here that are the same for either case). For joint managing conservators, rights may be allocated as exclusive to one of the conservators or by agreement, or as independent rights available to both conservators. Those rights include:
- the exclusive right to consent to medical, dental, and surgical treatment involving invasive procedures and to consent to psychiatric and psychological treatment of the child
- the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child
- the right to consent to marriage and to enlistment in the armed forces of the United States
- the right to make decisions concerning the child's education;
- the right to the services and earnings of the child except when a guardian of the child's estate or a guardian or attorney ad litem has been appointed for the child
- the right to act as an agent of the child in relation to the child's estate if the child's action is required by a state, the United States, or a foreign government
- the duty to manage the estate of the child to the extent the estate has been created by community property or the joint property of the parents
What is standard possession for the non-primary conservator?
The Texas Family Code provides us with a Standard Possession Order or ("SPO"). The SPO provides for periods of possession with the child(ren) during weekends, holidays, spring breaks and summer vacations. The SPO is split with regard to whether the parents reside within 100 miles of each other or the parents reside more than 100 miles apart.
A copy of the Texas Standard Possession Order is attached hereto and may be accessed by clicking here.
Can the court consider the child's preference of whom they want to live with primarily?
Yes. Once a child has reached the age of 12, the child can sign an affidavit of preference stating with which conservator the child would rather primarily live with. The affidavit does not, however, guarantee that the court will designate the primary conservator based solely on the child's preference. However, courts generally will give the child's preference some consideration. The judge can and will overrule the child's preference if the judge believes it is not in the child's best interest.
What are some of the important issues considered by the court when deciding conservatorship cases?
The answer to this question boils down to five words "best interest of the child". In making a decision as to what is in the best interest of the child, the court will consider many issues, including, but not limited to:
- family violence of any kind
- sexual abuse of any kind
- drug abuse
- alcohol abuse
- parental alienation of one parent by another including denial of child visitation;
discussing the litigation with the child - child abuse, neglect and/or endangerment
living conditions - overall well-being of the child, including, the child's family, school, grades, friends and extracurricular activities
The child's performance in school is very important. A parent seeking custody should be very familiar with a child's teachers and school record. Where there are medical or health issues, the parent seeking custody should also be familiar with the child's medical records and health care providers.
The ultimate success of any case is fact specific. The more relevant facts/evidence and witnesses a parent seeking custody can provide to his/her attorney, the greater the likelihood of success.
How can I maximize my chances for being named the "primary" conservator?
A. Spend time with your child.
a. Make the time with your child really count.
b. Get to know your child and become a good listener.
c. Insulate your child from the details of the custody case.
B. Have a well-defined discipline plan.
a. Knowing the rules and consequences in advance encourages cooperation
in your child.
b. Consistency is extremely important to the success of your plan.
c. Positive reinforcement is also important.
C. Express your love to your child.
a. Do not try to win the child's love through buying the child things.
b. Read stories together
c. Be open and honest with your child.
D. Share the child with the other parent, keeping in mind the child's best
interest.
a. Visitation should continue as ordered by the court.
b. Withholding visitation is a "red flag" to losing custody.
c. Withholding visitation is a precursor to change of custody.
d. Communicate with the other parent regarding the child to facilitate smooth
changes in possession.
E. Attend parenting classes.
a. Your parenting skills are learned from your parents.
b. Learn new information and update parenting skills.
c. This shows the court your dedication to your role as a parent.
