For parents considering divorce or separation, the impact on the children is of paramount importance. Custody issues can be complex and difficult to navigate. 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 people frequently think of as “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 parenting time.
Conservatorship
Sole versus Joint Managing Conservatorship
Unless the parents reach an agreement, the court must first determine whether the parents will be joint managing conservators or whether one parent should be sole managing conservator and the other a possessory conservator.
Joint managing conservatorship is presumed to be in a child’s best interest. In other words, it is the default. If there is evidence that joint managing conservatorship is not in the child’s best interest, a court can decide that one parent should be sole managing conservator. For example, family violence, alcohol or drug abuse, and similar issues 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.
Possessory conservators and managing conservators all have certain rights, such as the right to receive information about the child.
Managing conservators have additional rights and duties, many related to making decisions on the child’s behalf. If a court appoints one parent sole managing conservator, that parent has many exclusive decision-making rights. If a court appoints both parents joint managing conservators, decision-making 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.
Rights and Duties of Parents
The rights and duties of managing conservators are subject to division in a suit affecting parent-child relationship (SAPCR), such as a divorce proceeding. Those rights and duties include the following:
- the right to designate the primary residence of the child;
- the right to the services and earnings of the child;
- the right to consent to the child’s marriage or enlistment in the armed forces;
- the right to consent to medical, dental, and surgical treatment involving invasive procedures;
- 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 make decisions concerning the child’s education; and
- the right to apply for, renew, and maintain possession of the child’s passport.
If parties are appointed joint managing conservators, these 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; in other words, a parent can make certain decisions with or without the other parent’s consent. If rights are joint, the parties must agree.
The rights most frequently at issue in a divorce or other SAPCR proceeding are a) the right to determine the child’s primary residence and b) the right to receive child support. These rights are generally given exclusively to one parent who is sometimes referred to as the “primary” 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. Notably, even when one parent has the right to determine the child’s primary residence, the parties can still have equal amounts of time with the children. Sometimes, neither parent will have the exclusive right to determine the child’s residence; this is often the case when parents have “50/50 custody” or equal parenting time.
Joint managing conservators can still have limited rights. For example, despite the title, a joint managing conservator may not have the right to make educational decisions or psychological/psychiatric decisions on the child’s behalf.
Possession
“Possession” means parenting time. If you ask ten different divorced parents what their parenting schedule is, you might get eight different answers. Divorcing or separating couples come to many different agreements regarding 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. In other words, SPO is the default.
Generally, if parents live less than 100 miles apart, the SPO provides that the parent who does not have the right to determine the child’s primary residence has possession on the first, third, and fifth weekend of each month beginning at 6 p.m. on Friday and for a couple of hours on Thursday evenings. The SPO also provides for alternating holidays and extended summer possession by each parent.
If a conservator who lives within 50 miles of the child’s primary residence chooses, he or she can elect to have his or her weekend possession periods begin when the child is dismissed from school and end when school resumes (when school is in session). A conservator living within 50 miles of the child’s primary residence can also choose to have possession on Thursdays beginning when school is released and ending the next morning when school resumes (when school is in session).
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.
