Tuesday, July 13, 2021

Child Custody Basics

By Claire James

 

For parents considering divorce or separation, the impact on the children is of paramount importance. For parents who are already divorced or separated, conflicts between co-parents can lead to custody litigation. Custody issues can be complex and difficult to navigate, so this article aims to give a high-level overview of Texas law surrounding the main components of “custody”: conservatorship and possession.

 

Components of "Custody" in Texas: Conservatorship and Possession

In Texas, what most people call "custody" is made up of two main components:  conservatorship and possession. Conservatorship is the bundle of legal rights and duties of parents. Possession (or possession and access) refers to the times at which each parent has a right to physical custody of the child.

 

1. Conservatorship

Rights and Duties of Parents

Conservatorship consists of certain rights and duties that are subject to division in a suit affecting parent-child relationship (“SAPCR”), such as a divorce proceeding, an original SAPCR proceeding, or a modification proceeding. Those rights and duties include the following:

  • the duty of care, control, protection, and reasonable discipline of the child;

  • the duty to support the child;

  • the duty, except when a guardian of the child's estate has been appointed, to manage the estate of the child;

  • the right to receive information regarding the health, education, and welfare of the child;

  • the right to consult with the child’s physician, dentist, or psychologist;

  • the right to have physical possession of the child;

  • the right to direct the moral and religious training of the child;

  • the right to designate the residence of the child;

  • the right to the services and earnings of the child, in most cases;

  • the right to consent to the child's marriage or enlistment in the armed forces;

  • the right to consent to medical and dental care for the child;

  • the right to consent to psychiatric, psychological, and surgical treatment for 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 receive child support;

  • the right to inherit from and through the child; and

  • the right to make decisions concerning the child's education.

 

Joint v. Sole Managing Conservatorship

Initially, the court must determine whether to appoint both parents as joint managing conservators or to appoint one parent sole managing conservator and one parent possessory conservator. Joint managing conservatorship is presumed to be in a child’s best interest; in other words, it is the default. This presumption can be rebutted by evidence that joint managing conservatorship is not in the child’s best interest. For example, a finding of a history of family violence by a parent removes the presumption. If a parent has issues such as alcohol abuse or drug use, or if the parent has been absent from the child’s life, such facts weigh against joint managing conservatorship. Other factors a court considers include the child’s physical, psychological, or emotional needs; the ability of the parents to give first priority to the welfare of the child; whether parents encourage and accept a positive relationship between the child and the other parent; whether both parents participated in raising the child prior to the suit; geographical proximity; and, if the child is 12 years of age or older, the child’s preference.

If the court appoints one parent as the sole managing conservator, he or she automatically receives many of the above rights exclusively. Specifically, a sole managing conservator has the exclusive rights to: designate the child’s residence, consent to invasive procedures, consent to psychiatric or psychological treatment of the child; receive child support; represent the child in legal action and make legal decisions for the child; consent to marriage and to enlistment in the military; make decisions concerning the child’s education; act as an agent of the child in relation to the child’s estate; and apply for and renew the child’s passport.

If parties are appointed joint managing conservators, these same rights are divided between the parties exclusively, independently, or jointly. If rights are exclusive to a parent, that parent is the sole decision-maker. If rights are independent, each parent can exercise them independently from the other parent. If rights are joint, the parties must agree.

The rights most frequently at issue in a divorce or other SAPCR proceeding are the right to determine the child’s primary residence and the right to receive child support. These rights are generally given exclusively to one parent who is sometimes referred to as the “primary” parent or the “possessory” parent. Frequently, the right to determine the child’s residence is subject to a geographical restriction such that the "primary" parent cannot move the child away from his or her other parent.

 

2.  Possession

If you ask ten different divorced or separated parents what their visitation schedule is, you might get eight different answers. Divorcing or separating couples come to many different agreements regarding parenting schedules based on their desires and the needs of their children. When parents do not reach an agreement, the Standard Possession Order (“SPO”) is presumed to be in the best interest of the child if the child is at least 3 years old.

Generally, the SPO provides that one parent has the right to determine the child’s primary residence and the other parent has possession on the first, third, and fifth weekend of each month and for a couple of hours on Thursday evenings. The SPO also provides for alternating holiday possession and extended summer possession by each parent.

A court can deviate from the SPO when there is evidence it is inappropriate or unworkable. In determining whether and how to vary from the SPO, a court considers the age, development status, circumstances, and best interest of the child as well as the circumstances of the parents (or other conservators, if any). For example, courts might consider the parents’ relative stability, the home environments of the parents, the parents’ respective involvement with the child prior to the lawsuit, any special needs of the child, and any bad acts by the parents (e.g., abandoning the child, alcohol abuse). When a court orders a schedule different from the SPO, it must render an order as similar as possible to the SPO.


 

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