The Texas Family Code does not use the term “custody” in describing a parent’s legal relationship with a child, but instead utilizes the term “Conservatorship.” This term focuses on the rights and duties of the parent-child relationship. What follows is a discussion of the Conservatorship law in Texas.

Managing and Possessory Conservatorship

There are two types of conservatorships in Texas: managing and possessory.

Managing conservators have the authority to “manage” the following decisions for the child independently, exclusively, and/or subject to the agreement of the other parent conservator:

• Primary residence of the child
• Medical, dental and surgical treatment involving invasive procedures
• Psychological and psychiatric treatment
• Education
• Receipt of child support funds for the benefit of the child
• Legal rights and representation
• Consent to marriage
• Consent to armed forces enlistment
• Services and earnings of the child (as a teenager)
• Estate of the child

Types of Managing Conservatorship—there are also two types of managing conservatorship: Joint Managing Conservatorship (hereinafter “JMC”), where two (or more) persons share the rights and responsibilities of a managing conservatorship; however, the exclusive right to make certain decisions may be awarded to one party; and Sole Managing Conservatorship (hereinafter “SMC”), where one person holds all managing conservatorship rights and duties listed above.

Texas law presumes that both parties should be appointed JMC and contains limited grounds for rebutting that presumption. In general, most interested parties who have not committed family violence or otherwise do not pose a risk of harm to the child will be appointed as a JMC.

However, JMC does not necessarily result in equal time with the child. While that does happen in some cases, it is usually by agreement of the parties or based on a recommendation by a Guardian Ad Litem which is ultimately adopted by the court or agreed to between the parties.

Possessory conservators, on the other hand, has the right of possession and access to the child under a defined possession schedule and is authorized during periods of his/her possession to exercise certain rights of a parent.

A court must appoint a parent as either a managing or possessory conservator unless it finds that allowing possession and access would endanger the physical or emotional welfare of the child and that it is not in the child’s best interest to grant such possession or access. Thus, in cases of abuse or endangerment, a court may require supervised possession or severely restrict or eliminate a parent’s right to possession or access to a child.

The Exclusive Right to Designate the Primary Residence

The exclusive right to designate the primary residence of the child falls within the conservatorship circle. A large majority of contested cases involve one or both party’s focus on obtaining the exclusive right to designate the primary residence of the child. Unfortunately, parties often assume that by obtaining “primary” that he or she will receive more time with the child; however, that is not always the case. Possession is its own “circle of law”.  One factor that the court considers when appointing a parent as the “primary” parent is which parent is going to be the best at encouraging the other parent’s relationship with the child. To learn about this parental right, contact us to schedule a consultation.

Geographic Restrictions

Texas Law provides for the ability to restrict the Exclusive Right to Designate the Primary Residence to within a certain geographic area, including a county within Texas, or even a particular school district.

Geographic restrictions are quite common in most orders; however, parties may agree to waive them, and they often are conditioned on the non-primary parent remaining within that area. The primary parent may also later petition the court to lift the restriction if circumstances change: for example, if the non-primary parent does not maintain a strong relationship with the child.