Court orders which involve legal issues pertaining to a child generally have three main areas the order addresses: 1. Conservatorship, 2. Possession and access, and 3. Child support. This blog will focus on conservatorship and provide insight into how a parent can get sole custody of their child in Texas.
What is Conservatorship?
In the Texas law, the word “custody” is not mentioned. Most people use the word “custody” because of the age we live in and the media we consume. Conservatorship is the legal term for what many people refer to as “custody” in Texas. A parent will need a court order to establish conservatorship. Parents get a court order establishing conservatorship, most commonly, in a divorce or suit affecting the parent-child relationship. Conservatorship defines a person’s relationship with the child of the suit, including the person’s rights and duties related to the child.
Different Types of Conservators
In Texas, three types of conservators exist, including: 1. Joint Managing Conservator, 2. Sole Managing Conservator, and 3. Possessory Conservator.
If an order names one parent as a Sole Managing Conservator, the order will name the other parent as a Possessory Conservator. A judge takes into account a multitude of facts when determining whether conservators should be appointed Joint Managing Conservators or Sole Managing Conservator and Possessory Conservator. These factors can include whether a conservator has engaged in family violence, abused or neglected the child, abused alcohol or drugs, or disappeared from the child’s life. Ultimately though, a Judge will do what he or she believes is in the best interest of the child.
Rights Parents Have at All Times
All parents have certain rights and duties at all times regardless of whether the parent is a Joint Managing Conservator, Sole Managing Conservator or Possessory Conservator. All conservators of a child have, at all times, the right to:
- Receive information from the other conservator regarding the child’s health, education and welfare;
- Confer with the other parent to the extent possible before making decisions concerning the child’s health, education, and welfare;
- Access the child’s dental, medical, psychological, and educational records;
- Consult with the child’s physician, dentist, or psychologist;
- Consult with school officials regarding the child’s welfare and educational status, including school activities;
- Attend school activities, including but not limited to school lunches, performances, and field trips;
- Be designated on the child’s records as a person to be notified in case of an emergency;
- Consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to a child’s health and safety; and
- Manage the child’s estate if the parent’s family created the estate or if the parent created the estate using their separate property.
Duties Parents Have at All Times
In addition to the rights listed above, all conservators of a child have, at all times, the duty to inform the other conservator in a timely manner about significant information concerning the child’s health, education, and welfare.
Conservators, at all times, also have the duty to inform the other conservator if the conservator:
1. resides with a registered sex offender for at least thirty days;
2. resides with someone currently charged with an offense that would classify them as a sex offender if convicted for at least thirty days;
3. marries a registered sex offender;
4. marries someone currently charged with an offense that would classify them as a sex offender if convicted;
5. intends to marry a registered sex offender; or
6. intends to marry someone currently charged with an offense that would classify them as a sex offender if convicted.
Under this duty, the conservator must inform the other conservator within forty days of starting to live with the registered sex offender or within ten days after the conservator marries the registered sex offender.
Additionally, conservators have the duty to inform the other conservator if the conservator lives with a person who the conservator knows has a final protective order against them by someone other than the conservator that is effective on the day the conservator begins living with the person. The conservator has the duty to inform the other conservator of this fact within thirty days of living with the person subject to a final protective order.
Similarly, a conservator has the duty to inform the other conservator if the conservator lives with or permits unsupervised access to a child by a person who is subject to a final protective order sought by the conservator. The conservator must inform the other conservator within ninety days of the court issuing the final protective order.
Finally, a conservator has the duty to inform the other conservator if the conservator themselves is the subject of a final protective order issued after the order establishing conservatorship. The conservator must inform the other conservator within thirty days of the final protective order being issued.
Rights and Duties Conservators Have During Periods of Possession
Parents, regardless of whether they are Joint Managing Conservators, Sole Managing Conservators, or Possessory Conservators, have certain rights and duties during their periods of possession with their child. All parents have the duty to take care, control, protect, and reasonably discipline their child. Parents have the duty to support their child, including but not limited to providing the child with clothing, food, shelter, and medical and dental care other than invasive procedures. While in possession of their child, parents have the right to consent to medical and dental care for their child that do not involve invasive procedures, for example, an eye exam. Lastly, parents have the right to direct the child’s moral and religious training, such as taking the child to church, temple, or mosque.
Other Rights Most Often Fought Over
While all conservators have the previously discussed rights and duties, the rights and duties many consider the most important are not automatically given to conservators. If a parent is named Sole Managing Conservator in a court order, the parent will have the exclusive right for all the rights described below in this section.
These important rights and duties include three rights oftentimes referred to as “heads, meds, and eds”. “Heads” refers to the right to make decisions concerning psychiatric and psychological treatment for the child, such as whether the child attends therapy, the child’s therapist, or whether a child takes prescribed medication for mental health purposes. “Meds” involves to the right to consent to medical, dental, and surgical treatment involving elective invasive procedures for the child, including but not limited to braces, vaccines or removing wisdom teeth. “Eds” concerns the right to make decisions regarding the child’s education, such as whether the child takes gift and talented classes or whether the child should be held back a year.
Another important right is the right to designate the child’s primary residence with or without a geographic restriction. This right means the parent gets to decide where the child lives. Oftentimes, the parent who has the right to designate the primary residence of the child is also the parent with the exclusive right to receive child support payments from the other conservator.
Other important rights include the right to represent the child in legal action, consent to marriage and enlistment in the armed forces, the right to the child’s services and earnings, the right to act as the child’s agent in relation to the child’s estate, and the duty to manage the child’s estate. Lastly, another right that can create some contention between parents is the right to apply for, renew, and maintain possession of a child’s passport.
Independent, Exclusive or Joint Decision Making
Orders apportion these in a few ways – independent, exclusive or joint rights and duties.
Independent - If a conservator is given an independent right this means they can exercise that right without the need to consult or get permission from the other conservator. Oftentimes, parents need and want to be in the know about decision making. If a right is independent, it is often accompanied by language that a meaningful consultation must happen between the conservators. For example, conservators could have “the independent right, after advanced consultation with the other parent conservator, to represent the child in legal action.” This means that before initiating legal action on behalf of a child, the two conservators must discuss what action one conservator must take. No permission to make a decision is required, just a conversation between the two conservators.
Exclusive - When a conservator has an exclusive right, they are the only conservator with the right. The other conservator will have no involvement in the decision, unless there is language referencing consultation with the other parent conservator. A common exclusive right is the exclusive right to receive child support, which means only one parent can receive child support. Another is the exclusive right to designate the primary residence of the child.
Joint - Conservators can also have a right subject to the agreement of the other conservator, which means that both conservators must agree. Oftentimes, when conservators have a right subject to the agreement of the other conservator, the order will include tie breaker language which states that if the conservators cannot agree then a designated third person will make the decision. For example, an order might say that
“a conservator has the right, subject to the agreement of the other conservator, to consent to invasive medical procedures.” Therefore, if one parent wants a vaccine and another parent does not, barring any tie breakers, the child will not receive the vaccine. However, if the order lists the child’s pediatrician as the tie breaker in the case of disagreement, the child will receive the vaccine if the child’s pediatrician believes the vaccine is in the child’s best interest.
How a Parent Can Get Sole Custody in Texas
In Texas, public policy favors naming parents as Joint Managing Conservators because Texas wants parents to share decision-making rights. Therefore, it is presumed that parents should be named Joint Managing Conservators when there is a child in a suit. The burden falls on a parent who wants to be named Sole Managing Conservator to show why Joint Managing Conservatorship is not in the best interest of the child. Texas public policy does not favor naming parents as Joint Managing Conservators in cases where one parent has historically acted violently towards the other. It is also important to know that a parent’s gender is not indicative on them receiving custody of their child.
As stated at the beginning, “sole custody” is not defined in the Texas Family Code or found in Texas law. A parent who wishes to get “sole custody” of a child in Texas likely is asking for a court order establishing them as the Sole Managing Conservator. To accomplish this, parents can agree to name one parent as the Sole Managing Conservator and the other parent as the Possessory Conservator. This can be done through informal settlement negotiations or achieved in mediation with a Mediated Settlement Agreement. The parties would then draft a Final Order which would outline the Sole Managing Conservator parent and the Possessory Conservator parent’s rights and duties.
Absent an agreement between the parties, to obtain Sole Managing Conservatorship parties must attend trial. A judge may name one parent as the Sole Managing Conservator if the other parent has engaged in family violence, abused or neglected the child, abused alcohol or drugs, or disappeared from the child’s life. Texas Family Code Section 153.004 defines family violence as “the intentional use of abusive physical force” or sexual abuse against one’s spouse, a child’s parent, or a child (person younger than 18). The family violence must have occurred either while the case was ongoing or within two years prior to the filing of the suit.
The parent would need to argue to the court that naming them as Sole Managing Conservator is in the child’s best interest. For example, the parent can argue that it would not be in their child’s best interest to have a physically abusive parent who has previously abused the child appointed Joint Managing Conservator of the child. A parent should gather evidence that supports their contention that appointing both parents as Joint Managing Conservators is not in the child’s best interest, focusing on the factors discussed above, such as family violence. The parent should begin gathering evidence of the other parent’s behavior as early as possible, even if a lawsuit has not been filed. A parent will likely struggle to have a judge name them Sole Managing Conservator in cases with no family violence, abuse, neglect, or alcohol or drug use.
Maximizing Legal Power as a Joint Managing Conservator
Even if a court appoints a parent as a Joint Managing Conservator, they can still have the legal power to make decisions regarding their child in a similar way as if they were named Sole Managing Conservator. In court orders which appoint the parents as Joint Managing Conservators, the order will name one parent as the parent with the exclusive right to designate the child’s primary residence, make decisions regarding “heads, meds, and eds” and all other rights and duties found in Texas Family Code § 153.132.
In this way, a parent named Joint Managing Conservator can still have the right to make all the decisions regarding the child just as they would have if they were named Sole Managing Conservator. Oftentimes, unless specific facts exist as outlined above, parents should not waste time and resources fighting over the title of Joint Managing Conservator or Sole Managing Conservator. Ultimately, a parent who is named “Joint Managing Conservator” can maintain much of the same legal rights held by someone with the title “Sole Managing Conservator.”