The Texas Family Code uses the term “conservatorship” to refer to what is called “custody” in many jurisdictions. Family law litigants frequently conflate conservatorhip and possession (visitation), two concepts that are actually separate and distinct. For example, many clients state that they want “joint custody” of their children on the assumption that such a child custody arrangement will result in a “50-50” possession schedule. Conservatorship, however, relates to parental rights and duties–the right to make educational and medical decisions on behalf of your child, for example–and is separate from the possession schedule (which days during the week you will have visitation with your child according to the child custody agreement).
Joint Managing Conservatorship
Under the Texas Family Code, appointment of the parents as joint managing conservators is presumed to be in the child’s best interest unless there is a history of family violence involving the child’s parents. If both parents are appointed as joint managing conservators, either by agreement between the parents or by court order, the court must specify the parental rights and duties that are to be retained by both parents, those that are to be exercised by joint agreement, and those that are to be exercised exclusively by one parent. In general, joint managing conservators will be expected to reach agreement on important child custody decisions concerning the child’s physical care, support, and education. However, if the parents have diametrically opposed views on an important issue–if, for example, one parent is adamant that the child be home-schooled while the other parent is equally insistent that the child attend a traditional school–then the court will grant one parent the exclusive right to make educational decisions on behalf of the child.
When both parents are appointed as joint managing conservators, the court will typically designate one parent as having the exclusive right to determine the child’s primary residence. This will be the “custodial parent.” If your divorce decree lacks a geographic restriction (restricting the parties to Travis County, for example) for child custody, the custodial parent will be allowed to move with the child to a different city or state without the other parent’s consent. The court will also determine which parent will receive child support from the other parent. Generally, the custodial parent, or the parent with whom the child resides for a majority of the time, will be entitled to receive child support payments from the other parent.
The Texas Family Code specifically provides that joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child of each of the joint conservators.
Sole Managing Conservatorship
Appointment of one parent as the child’s sole managing conservator–or winning “sole custody” in the common parlance– is relatively rare in child custody cases. As noted above, there is a legal presumption that appointing the parents as joint managing conservators is in the child’s best interest. However, this presumption can be overcome where there is evidence of family violence, extreme conflict between the parents, evidence of endangering conduct by a parent (drug or alcohol abuse, child neglect, etc.), or if there is a significant geographic distance between the parents’ homes. A parent appointed as a sole managing conservator has certain exclusive rights, including the right to determine the child’s primary residence, the right to receive child support payments from the other parent, the right to make decisions concerning the child’s education, and the right to consent to medical treatment, among other rights. Thus, in contrast to a joint managing conservatorship arrangement, a sole managing conservator can make a range of critical decisions on behalf of the child without the other parent’s consent.
If one parent is appointed as the child’s sole managing conservator in the child custody agreement, the other parent will be appointed as a possessory conservator, unless the court finds that the appointment is not in the child’s best interest and that parental possession or access would endanger the physical or emotional welfare of the child. A parent appointed as the possessory conservator has fewer rights than the sole managing conservator but still has certain basic rights afforded to all parents under the Family Code, including the right to receive information from the other conservator of the child concerning the health, education and welfare of the child; the right to confer with the other parent to the extent possible before making a decision concerning the health, education and welfare of the child; the right of access to the child’s medical and educational records; the right to consult with the child’s physician, dentist, or psychologist; the right to consult with school officials concerning the child’s welfare and educational status; and the right to attend school activities, among other rights.
Once the court determines conservatorhip, it will enter a possession schedule that is in the child’s best interest (although the parties are allowed to craft their own agreement regarding possession). For a child three years of age and above and whose parents reside 100 miles or less apart, the law presumes that the standard possession order set forth in the Family Code provides the reasonable minimum possession of a child for a parent named as a possessory conservator or a joint managing conservator. This is the typical possession schedule in child custody cases for a possessory conservator or the joint managing conservator who is not the child’s custodial parent.
Under the standard possession order, the possessory conservator or noncustodial joint managing conservator shall have possession of the child on the first, third, and fifth weekends of each month, beginning on Friday at 6:00 p.m. (or after school is dismissed) and ending at 6:00 p.m. on the following Sunday; and on Thursdays of each week during the regular school term beginning at 6:00 p.m. and ending at 8:00 p.m. There are additional provisions governing possession during holidays, birthdays, and summer vacation.
This is the default possession schedule under the Family Code. However, parents are allowed to negotiate a customized schedule that is more compatible with their needs and schedules. Courts will generally adopt a schedule that is the product of negotiation between the parties.
How Do Courts Determine Custody?
In determining questions of conservatorship, possession, and access to a child, the court’s primary consideration is always the child’s best interest. Courts consider a number of factors in determining a child’s best interest, including, but not limited to:
- The child’s desires.
- The child’s emotional and physical needs.
- The parental abilities of the individuals seeking custody.
- The stability of the home.
- The parent’s acts or omissions that may indicate that the existing parent-child relationship is not a proper one.
Children 12 years of age or older can express their wishes to the court regarding conservatorship or the person who shall have the right to determine the child’s primary residence. A child’s preference, however, is not binding on the court. A child may want to live with a parent for the wrong reasons. While a child’s preference is certainly entitled to deference, ultimately the court has the discretion to determine the child’s best interest in a child custody dispute.
Father’s Rights: Can Fathers Get Primary Custody?
Absolutely. The Family Code expressly forbids courts from making decisions regarding conservatorship and possession of children based on the gender of the parties. Nevertheless, courts have wide discretion in making these determinations and a bias in favor of mothers, particularly in “close calls” or where young children are involved, arguably persists with some judges. It is imperative that fathers interested in obtaining primary custody of their children take an active role in their children’s lives, particularly with respect to day-to-day “care-taking” functions like preparing meals, taking the children to school, shuttling them to extra-curricular activities, attending parent-teacher conferences, etc. Arguing that you have more financial resources than your spouse is not enough to be appointed as the custodial parent. You should be doing these things well before you become involved in a custody dispute. You should also be prepared to mount an aggressive fight. Most litigants–both moms and dads–don’t appreciate how costly it can be to properly litigate a child custody battle. If you are committed to maximizing your role in your child’s future, then you need to hire the best attorney you can afford and invest in your case.
Child custody disputes are the most challenging in family law. Hiring the right Austin child custody lawyer who can marshal your strongest possible case is critical to achieving the outcome that is best for you and, more importantly, your children.