Child Custody

Conservatorship, Possession & Child Support

“Where do you live?” the middle-aged businessman asked the nine-year-old girl sitting next to him on the plane.”
“I live with my dad in Oregon and my mom in California”
“I mean, where do you live?” the businessman persisted.”
“I live with my dad in the summers and my mom during schooltime.”
“I understand, honey,” he said, “but where is your real home?”
“The little girl looked as puzzled as her seatmate.  Then she explained: “I have two real homes.  My mom’s house and my dad’s house.”

–excerpt from Mom’s House, Dad’s House by Isolina Ricci, Ph.D.

At Fox Law, the questions asked by the businessman above are often asked by our own clients.  Where will my daughter live?  Will my home be her home?  Will I have the right to make all the major decisions like medical and psychiatric care?  Below is a brief overview of how Texas law impacts these questions.  Please know that this page is not a substitute for a more thorough explanation that would happen in a consultation after hearing the specific facts of your case.

We have created a visual aid to help our clients better understand the differences between the three areas of law that impact children in a family law matter.  Conservatorship, possession, and child support are the issues that a Court must decide when presented with a case involving children.

CONSERVATORSHIP (aka “CHILD CUSTODY”)

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.” *See visual aid above. 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.

POSSESSION AND ACCESS (aka “VISITATION”)

Possession and access of a child falls within the possession circle. *See visual aid above. Texas law uses the term “possession and access” to describe a child’s possession schedule with each parent and/or conservator. The term “visitation” is not used in Texas. We don’t use the term “visitation” because, borrowing a phrase from a respected colleague: “You visit Disneyland – you don’t visit your children.”

Every possession order contains a provision that allows parties to do whatever they want to do with regard to possession of the children and sharing time with the children so long as they both agree to the change. It is always best to get these agreements in writing (i.e., e-mail or text) to prevent any miscommunication that may occur during a verbal exchange regarding possession. When the parties are not able to agree on a change in possession, the court’s order for possession will prevail.

The Standard/Expanded Possession Order, per Section 153 Subchapter F of the Texas Family Code, is presumed to be in the best interest of the child in all Texas family law cases, unless one party produces evidence to the contrary such as abuse or endangerment to a child. While the Standard Possession Order is the most widely used schedule by the court, it is important to note that it is often considered the minimum amount of time that courts deem appropriate between a child and the non-primary parent. To learn about Standard and Expanded Possession, contact us to schedule a consultation.

For cases filed on or after September 1, 2021, see the Office of the Attorney General’s Standard Possession Order breakdown for parents who reside:

  • 50 miles or less apart
  • 51 to 100 miles apart
  • Over 100 miles apart
TEXAS PARENTING SCHEDULE

Alternative possession schedules may include the following:

Per Section 153.255 of the Texas Family Code, parties that desire a possession schedule that deviates from the Standard Possession or Expanded Standard Possession Order certainly have the flexibility to be as creative as they want or need to be when shaping a possession schedule that best benefits that family’s needs. In a litigated case; however, the court will review the evidence and if the evidence shows that another arrangement would be in the child’s best interest, that the Standard Possession Order is just unworkable (i.e., due to the parties’ work schedules), that the child is less than 3 years old, or that there is a recent history of family violence, the court may decide to deviate from the Standard Possession Order.

Alternative possession schedules may include the following:

  • Alternating Weeks, With or Without Weeknight During Other Parent’s Week [50/50]
  • 2-2-5-5 Wrap Schedule [Mon-Tues every week, Wed-Thurs every week, Alternate Weekends]
  • 2-2-3/2-2-3 Possession Schedule [Mon-Tues every other week, Wed-Thurs every other week, Alternate Weekends]
  • Under Three Years of Age
  • Airline, Police Officer, or Firefighter’s Possession Schedule
  • Custom Possession Schedule [designed by parties / mix of the above]
  • Supervised Possession

What is the difference between Conservatorship, Possession & Child Support?

Conservatorship

Joint Managing Conservators (JMC)
Sole Managing Conservator (SMC) / Possessory Conservator

Texas Family Code Rights and Duties: Sections 153.073, 153.074, 153.076 and 153.132

  • Who has the right to determine the primary residence of the child?
  • What are the geographic restrictions, if any?
  • Who has the right to receive child support?
Possession

Standard Possession Order
Expanded Standard Possession Order
Week on / Week off
2-2-5-5 Wrap
Under 3 Supervised

Texas Family Code Sections 153.254, 153.256, 153.312 and 153.317

  • When will I have possession of my child(ren)?
  • When will the other parent have possession of my child(ren)?
Child Support

Child Support Guidelines
Based on monthly net resources of Obligor
1 child: 20%
2 children: 25%
3 children: 30%
4 children: 35%
5 children: 40%
6+ children: not less than 40%

Texas Family Code Sections 154
Medical Support (e.g.: health insurance for the children) is also a form of child support per Section 154 of the Texas Family Code.

Click here for information regarding Child Support