CHILD CUSTODY

CHILD CUSTODY: YOUR ROLE AS PARENTS

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If you have minor children, your divorce decree will contain orders governing the conservatorship, possession and access, and support of the children after the divorce.

A “child” is any minor who was born or adopted by the parties. Once a child turns eighteen, the court’s jurisdiction over the adult child ends (with several exceptions regarding child support, which are discussed below).

NOTE: If you are not married, but are severing your relationship with the child’s other parent, you may initiate a Suit Affecting the Parent-Child Relationship to obtain orders to govern the conservatorship, possession and access, and support of the children.

CONSERVATORSHIP: WHAT DOES IT MEAN?

The Texas Family Code addresses “conservatorship” of child, meaning the legal status between the child and his/her parents after the divorce or separation, as it relates to making decisions for the child, having possession of and access to the child, and supporting the child.

The Family Code expressly sets out a non-exclusive list of rights, privileges, duties and powers of parents. In a nutshell, these rights and duties may be categorized into three areas:

  1. the right to make major decisions regarding the children;
  2. the right to have physical possession of the children; and
  3. the duty to financially support the children.

Conservatorship orders divide these various rights and duties among the parents after the divorce or separation.

CONSERVATORS & CONSERVATORSHIP DEFINED

We often hear: “I want full custody of my child(ren).” Well, child custody doesn’t exactly work that way – at least, not in Texas. The Family Code refers to two types of conservators: (1) the managing conservator and (2) the possessory conservator. These terms are confusing because the “managing” conservator is, generally speaking, the primary custodian of the child, while the “possessory” conservator merely has some rights to the child (e.g., visitation).

A conservatorship can be either “sole managing” or “joint managing.” Unless very extreme circumstances exist, parents will be appointed joint managing conservators of the child.

TYPES OF CONSERVATORS

Managing Conservators

A “managing conservator” is generally given all of the rights, privileges, duties and powers of a parent, except as otherwise ordered by the court, and:
  • has the exclusive right to designate the primary residence of the child;

  • has the right to make all of the major decisions governing the child’s lives (e.g. health and education);

  • has the primary physical possession of the child (primary custody); and

  • has the right to receive child support on behalf of the child.

Possessory Conservator

A “possessory conservator” is generally given:

  • only a handful of rights and duties to make decisions for the child which can be exercised only when the children are actually in the physical possession of the possessory conservator;

  • the right to certain limited times of possession of  and access to the child; and

  • the duty to pay the managing conservator child support for the benefit of the child.

TYPES OF CONSERVATORSHIPS

Sole Managing Conservatorship

A “sole managing conservatorship” exists when the managing conservator of the child is given all of the rights, privileges, duties and powers of a parent to the exclusion of the other parent. The possessory conservator may retain the right to possession of and access to the child, however, said access to the child may be supervised. This type of conservatorship is usually put in place if there has been family violence and/or if the possessory conservator poses a risk of harm to the child.

Joint Managing Conservatorship

The Texas Family Code presumes both parents should be appointed joint managing conservators, and the court will make such appointment, unless extreme circumstances exist. As joint managing conservators, both parents share certain rights and duties, including but not limited to:
  • the right to access health care records and consult with health care providers;
  • the right to access educational records, consult with school officials, attend and participate in school activities; and the right to be designated as a contact person in the event of an emergency;
  • the right to manage the child’s assets, services and earnings; and
  • consent to marriage and/or enlistment in the armed forces.
In some cases, one conservator may exercise exclusive rights, and other decisions may require the agreement of both parties or consultation with the other parent prior to making a decision.

VISITATION: POSSESSION OF AND ACCESS TO THE CHILD(REN)

The managing conservator and the possessory conservator will be given exact times of possession of and access to the child. Usually, the managing conservator has the child at all times except for those times of possession and access (as set out in a defined schedule) given to the possessory conservator (also known as “visitation rights”).

The legislature has, by statute, adopted a “Standard Possession Order.” Basically, the Standard Possession Order gives the possessory conservator the right to possession of and access to the child on the first, third, and fifth weekend of each month, beginning Friday and ending on Sunday, every Thursday evening, and one-half of the holidays. Excluding the time that the child is asleep or in school, the schedule gives the possessory conservator about 40% of the quality time with the child. For many reasons, judges rarely vary from this Standard Possession Order and only do so under certain circumstances (e.g., child is under three years of age).

CHILD CUSTODY

The information provided above is only a brief overview of what child custody entails, and is not to be considered legal advice. While the Texas Family Code establishes a Standard Possession Order, your situation may be different and thus require a Custom Possession Order or different options. Obtain a lawyer that is well-equipped and has extensive knowledge in this area to ensure that the conservatorship and possession order established best suits your family. Call the Law Office of Nancy E. Lusk at 281-242-2700 or click the button below to send Nancy E. Lusk a message.