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Custody / Conservatorship

This page is intended as a very general overview of issues related to conservatorship in a Texas suit affecting the parent child relationship. The statements and information provided on this website are for informational purposes only. This site is not intended to provide legal advice to the reader and NO attorney-client relationship shall be deemed to arise from the receipt of this page. An attorney-client relationship only arises after the attorney and client have signed a written attorney-client agreement, after the attorney has evaluated the background facts provided and has accepted the representation of the client's legal action.

Most clients are, unsurprisingly, unfamiliar with the terminology used in the Family Code to address child custody issues. For instance, many clients will tell us in their first office visit that they want to pursue “sole custody” of their children. It surprises some to hear that they could read the Family Code front-to-back and not find that phrase anywhere.

What most people think of as “custody” is treated as two separate, but related, concepts in Texas law: “conservatorship” and “possession”. Conservatorship generally refers to the rights of a parent (or other person appointed by the Court) to make decisions regarding a child. Possession, obviously, refers simply to the rights of a parent or other person to have physical possession of the child.

The Family Code tells judges that they are to presume it is in the best interest of a child that his or her parents be appointed “joint managing conservators”—meaning that the parents will share decision-making rights with regard to their child. As a practical matter, this means that parents will be named joint managing conservators unless one of them has a history of family violence, drug use or something similar. The rights of a joint managing conservator include, among others, the right to consent to invasive medical procedures, the right to make decisions about the child's education, the right to consent to psychological and psychiatric treatment, and the right to consent to the child's marriage or enlistment in the military.

Usually, joint managing conservators will share their decision-making rights, at least roughly, equally. For instance, in most cases each joint managing conservator will have the “independent” right to make decisions about the child's education, or the “independent” right to consent to the child's marriage—meaning each conservator has just as much authority on that issue as the other. But, this isn't always so. If the Court finds it advisable to do so, the decision-making rights can be parceled out on an unequal basis between the conservators. For instance, one conservator or the other might be given the “exclusive” right to make educational decisions, and another might be given the “exclusive” right to make medical decisions. Under that kind of arrangement, the conservator with the exclusive right gets to make all decisions in that area and the other conservator gets no say.

One area where the court usually does give one conservator or the other an “exclusive” right is in regards to the “right to designate the primary residence” of the child. Meaning, the conservator with that exclusive right gets to decide where the child will live, primarily, and, presumably, will choose to have the child live with him or her. The conservator with the exclusive right to designate primary residence is often referred to as having “primary custody” (another informal term you won't actually find in the Family Code). The determination of “primary custody” is important because the conservator with primary custody is usually going to receive child support from the other conservator. And, the non-primary conservator will (probably) end up having possession of the child less often than the primary parent (though not that much less—read Possession for more on this issue).

Until the 2009 Legislature, the Court had no choice but to grant primary custody to one parent or the other. But, that year, the Legislature revised the Family Code to allow, on the agreement of both parents, for neither parent to be granted primary custody and, instead, just put in place an order restricting the geographic area in which the child could live. In the years since 2009, an increasing number of divorcing parents have opted to forego anyone being named primary, though in most cases one or the other parent is still named primary.

A fight over primary custody usually means a great deal of time and expense. There is also an inevitable emotional cost as these are some of the most emotionally-charged cases a person can be involved in. If you are facing the prospect of a contested custody case, it is important to have a thorough conversation with an experienced family law attorney about the strategies you can use to avoid it or, if that's not possible, to maximize the odds of your success.

If you have questions about your conservatorship order, or about what can be done to modify it, please contact our office to schedule a free consultation.

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