In Texas, "child custody" is divided into two parts: conservatorship and possession/access of the child. Conservatorship is the legal rights and responsibilities a parent or guardian has regarding the care and upbringing of a child. The term encompasses various aspects of a child's life, including where the child will live, which schools the child can be enrolled in, how decisions about the child's welfare will be made, and how much time the child will spend with each parent. Possession/access means the visitation schedule each parent will have with the child.
Conservatorship
There are two main types of conservatorship:
Sole Managing Conservatorship (SMC): In this type of conservatorship, one parent or “conservator” is granted the primary rights and responsibilities over the child. This conservator makes most of the major decisions about the child's life, such as education, medical care, and psychological/psychiatric care of the child. The other parent may still have visitation rights but will have limited to no decision-making power. Sole Managing Conservatorships are most often awarded when there is family violence, child abuse or neglect, alcohol or drug use, or the other parent has been absent from the child’s life. The parent that is not named the sole managing conservator is called the possessory conservator.
Joint Managing Conservatorship (JMC): In a Joint Managing Conservatorship, both parents share the rights and responsibilities of raising the child. There is a presumption that this type of conservatorship is in the best interest of the child as it encourages both parents to be actively involved in the child's life. However, only one parent or conservator may have the exclusive right to determine the child's primary residence.
Possession and Access
The parent who does not have the exclusive right to determine the primary residence of the child is who gets awarded a possession order in Texas. The courts in Texas presume that it is in the best interest of the child for this parent to receive a Standard Possession Order.
In Texas, a Standard Possession Order (SPO), if the parties live within 50 miles of each other, the parent who has the SPO gets an overnight visit every Thursday night during the school year, the first, third, and fifth weekends of each month all year beginning Friday and ending Monday morning, and 30 consecutive days during the summer. If the parents live over 50 miles from each other, the court may order the Thursday visits only be from 6:00 pm to 8:00 pm and the weekend visits end Sundays instead of Monday morning. If the partis live over 100 miles from each other, the court may award the same possession order for parnts who live over 50 miles or limit the visits to only one weekend a month. The parents also alternate holidays each year regardless of their distance from each other.
Key Considerations in Child Custody:
- Best Interest of the Child: Texas courts prioritize the best interest of the child when making custody decisions. Factors considered include the child's physical and emotional needs, each parent's ability to provide for the child, the child's preference (if the child is 12 or older), and any history of family violence or abuse.
- Who the Primary Caregiver is: Courts in Texas also consider who has been taking care of the children for most of the time when deciding how to divide the decision-making for the child.
- Family Violence: The existence of family violence can significantly impact whether a parent or conservator is awarded a sole managing conservatorship or a joint managing conservator.
- The Wishes of a Child Over the Age of 12: A child over the age of 12 cannot choose which parent to primarily live with. However, the court will consider their wishes as well as whether their wishes would be in their best interest if the court listened to them.
Can Child Custody Be Modified?
Yes, child custody can be modified if it is the best interest of the child and there is a material and substantial change in circumstances, a child over the age of 12 has a preference, or one parent relinquished their possession of the child.
In Texas, child custody can become complicated depending on the circumstances of the case. If you need advice regarding a child custody case in Texas, please reach out to the Hunt Law Firm to speak to an attorney experienced in dealing with child custody matters.