Divorce is already difficult enough but things can become considerably more challenging when the fight is over children. This is especially true when the parents simply have no experience with the legal system and no idea what of their potential fates could be. This brief overview is in no way intended to be exhaustive in nature as each divorce comes with its own challenges. However, this basic insight into the calculus the courts follow when rendering orders affecting the parent-child relationship may alleviate some of the anxiety should parents part ways.
In Texas, the right to make decisions concerning a child is known as conservatorship (“custody” in many other states), which includes 3 distinct types of conservatorships: (a) Sole Managing Conservator; (b) Joint Managing Conservator; and (c) Possessory Conservator. While the three share many similarities, there are also marked differences.
Joint Managing Conservators
Texas Courts presume that both parents should share equal rights and responsibilities in caring for their child(ren) as joint managing conservators (“JMCs”). This presumption can be rebutted if shown that to allow for JMCs would adversely impact the child’s mental or physical well-being. While JMC is the most common arrangement, the courts in Texas are prohibited from awarding JMC in cases where “…credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child.”[1]Moreover, the court is prohibited from even granting a parent access if there is a history of family violence during the 2 years preceding the case filed or the parent committed sexual assault against the other parent and the victim became pregnant. This must be established by a preponderance of the evidence.[2]
Unless agreed upon by the parties, the court will likely designate one JMC as the parent with the exclusive right to designate the primary residence of the child. This parent is also deemed the ‘custodial’ parent with the exclusive right to receive child support. With the exception of the foregoing exclusive rights held by the primary JMC, the remaining rights and duties of the parents will be virtually identical. These will include, inter alia, the following:
the right to consent to medical, dental, and surgical treatment involving invasive procedures;
the right 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;
except as provided by section 264.0111 of the Texas Family Code, 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; and
the right 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.
(collectively “Standard Rights”).
[1] TEX. FAM. CODE § 153.004
[2] Preponderance of the Evidence means “more likely than not,” and is the lowest legal standard in the Texas legal system.
Sole Managing Conservator
In the event the court determines JMC is not appropriate due to the mental or physical health of the child, one parent will be designated the Sole Managing Conservator (“SMC”) with the exclusive right to make all material decisions regarding the child(ren). SMC is less common than JMC, however, as noted above, in the event there is a history of family violence or sexual assault, SMC is virtually guaranteed.
The Standard Rights defined above apply equally to SMC and JMCs, with the exception that SMC’s rights are to the exclusion of the other parent. More particularly, the SMC will have the exclusive right to make all material and/or relevant decisions concerning the child without the need to get the consent of the other parent and the possessory conservator merely maintains the right to possession and access to the child. As a consequence, SMC will by definition be deemed the custodial parent with the exclusive right to receive child support payments from the other parent.
Possessory Conservator
A possessory conservator (“PC”) has a right to possess and access the child but no authority/right to make decisions concerning the child. In essence, a PC merely has the right to visit with the child and is usually designated as such in cases where the other parent was designated as the SMC. As noted above, this usually involves circumstances wherein there is a pattern of abuse and/or neglect or designating JMCs is not in the best interests of the child given the emotional and physical harm posed by the PC parent. While a PC does not have decision-making authority, said parent will still maintain certain rights and duties, such as:
the right to receive information from any 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 medical, dental, psychological, and educational records of the child;
the right to consult with a physician, dentist, or psychologist of the child;
the right to consult with school officials concerning the child’s welfare and educational status, including school activities;
the right to attend school activities;
the right to be designated on the child’s records as a person to be notified in case of an emergency;
the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child;
the right to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family; and
the right to access the child’s medical records, and speak with medical professionals regarding the child.
(collectively “PC Rights”)
Conservator Duties:
A parent appointed as a conservator of a child has the following rights and duties during the period that the parent has possession of the child:
at all times care for, control, protect and reasonably discipline the child; and
support the child by way of providing clothing, food, shelter and non-invasive dental care.
(collectively “Duties During Possession”)
Additionally, there are certain reporting duties that exist of any conservator and remain in effect at all times, irrespective of whether the conservator is currently in possession of the child. Such duties include the following:
the duty to inform the other conservator of the child in a timely manner of significant information concerning the health, education, and welfare of the child;
the duty to inform the other conservator of the child if the conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Texas Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter;
the duty to inform the other conservator of the child if the conservator establishes a residence with a person who the conservator knows is the subject of a final protective order sought by an individual other than the conservator that is in effect on the date the residence with the person is established.
the duty to inform the other conservator of the child if the conservator resides with, or allows unsupervised access to a child by, a person who is the subject of a final protective order sought by the conservator after the expiration of the sixty-day period following the date the final protective order is issued.
the duty to inform the other conservator of the child if the conservator is the subject of a final protective order issued after the date of the order establishing conservatorship.
(collectively “Reporting Duties”)
We will be back shortly with additional information regarding parenting plans that deal with, among other things, important items such as possession and access schedules.
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