Child Custody & Conservatorship

For many years, Texas has used the term, “conservatorship” to describe the rights, responsibilities and duties of parents in raising their children.  This term also relates to what most people think of as “custody” of children.  When you are addressing “conservatorship” of a child, that does not relate to the amount of time that either parent will spend with the child; rather, it only addresses the legal rights and duties of the parents.

In Texas, we have two (2) kinds of conservatorships: (1.) sole managing conservatorship (the least common) and (2.) joint managing conservatorship (the most common).  The legal presumption is that joint managing conservatorship is in the best interest of the child.  However, the court will consider many factors in deciding which type of conservatorship is appropriate.  The “best interest of the child” is what the court is primarily concerned with.  All decisions that the judge makes should revolve around what is in the child’s “best interests”.

The judge is not allowed in Texas to discriminate against a parent because of sex or marital status.  Many factors from the child’s life will influence the court’s decisions about what is in the child’s best interest, including whether there is a history of violence between the parents, or violence directed against the child.  If the court does find credible evidence of a history or pattern of family violence (either between the parents or involving a child), the court is not allowed to appoint the parent who committed the violence as a joint managing conservator.  Likewise, the court should not appoint that person as a sole managing conservator.  Evidence of family violence may include testimony by the parent who was a victim, witnesses to the violence, pictures, doctors, hospital records, domestic violence counselor’s records, domestic violence shelter records, and/or evidence showing the issuance of a protective order against a parent.

So, what rights do parents get if they are “sole managing conservators” or “joint managing conservators?  Each of the terms is fully defined and discussed below:

1.)                Sole Managing Conservatorship. In very rare circumstances, one parent may be named the sole managing conservator over a child.  When a parent is given sole managing conservatorship, that parent has superior rights in raising the child.  That parent also has the most responsibility in raising the child.  As a sole managing conservator (often abbreviated to “SMC”), that parent ahs the right to establish where the child will live, the right to represent the child in any legal action, the rights to consent to marriage or enlistment in the military, the right to make religious and educational decisions, the rights to any of the child’s earnings, and the right to apply for and keep a passport for the child.

Examples of some of the reasons that a court might order one of the parents to be the sole managing conservator of a child include the following situations or circumstances:

  • There is a history or pattern of family violence, neglect or abuse by the other parent that might endanger a child;
  • The other parent is married to someone who has abused or neglected the child (their stepchild);
  • The other parent is married to someone who is a registered sex offender;
  • There is a history of drugs, alcohol, or other criminal activity by the other parent that might endanger a child (including a history of DWIs or DUIs);
  • There is a history of mental illness of one parent that is not well controlled by medical treatment;
  • The other parent has been absent from the child’s life, due to the actions of the absent parent (and not because one parent has purposefully hidden withheld the child from the other parent);
  • There is a history of extreme conflict between the parents over educational, medical or religious values;
  • A parent doesn’t want to be appointed a joint managing conservator

2.)                Joint Managing Conservatorship. When a parent is appointed as a joint managing conservatory (frequently abbreviated as “JMC”), the parents often share all of the parental rights, duties, and powers.  However, even when the parents are designated as “JMCs”, the court must still designate one parent who will establish the child’s primary residence and the geographic location within which the child’s residence must be located.  This person is called the “primary” joint managing conservator.  (Many people think of this as the parent who has “custody”.)  The other parent is called the “possessory conservator” because that parent has the right to the possession of the child at certain designated times.  That parent is also sometimes called the “non-custodial parent”.  Aside from decisions regarding the location of the child’s primary residence, most other major parenting decisions are shared between the primary and possessory joint managing conservators.

The presumption under the law is that joint managing conservatorship is in the child’s best interests.  In order to get a court to vary from the presumption, you must have hard evidence of a substantial nature.  The argument of “I’m the better parent” is not enough to overcome the presumption.  Neither is “All he/she does is get on the computer when he/she is at home”.  And, neither is the argument of “All he/she does is play the Wii/Nintendo/Xbox, etc.”.

­Possessory Conservatorship. The court will normally appoint the parent who is not the sole managing conservator as a possessory conservator.  In rare circumstances, the court may find that it would not be in the best interest of the child to appoint the other parent as a possessory conservator.  Usually, this is only done in cases where the child may be in danger of physical or even severe emotional abuse.

A person who is appointed as a possessory conservator (“PC”) has the same rights and duties that any parent has to their child.  The parent has the duty to support the child, even if there is no formal child support order signed by the court.

A PC has the right to receive information from the other parent about the child’s health, education, and welfare; the right to talk to the other parent (when circumstances allow) before decisions are made about the child’s health, education and welfare, the right to have access to the child’s records, to talk to the child’s physicians and dentists, the right to be designated on the child’s records as an emergency contact, the right to consent to medical treatment during an emergency, and the right to manage the estate of the child (including any earnings of the child).

Can a Non-Parent or Grandparent ask for Conservatorship? In limited circum­stances, a person other than the parent can be granted conservatorship.

NonparentA person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months has standing to ask for custody if the six-month time period has not ended more than ninety (90) days prior to filing the suit.

Foster ParentA foster parent can file for custody if the child has been in that person’s home for at least twelve (12) months, ending not more than ninety (90) days pre­ceding the date the suit is filed.

GrandparentA grandparent may file for custody if there is satisfactory proof to the court that the child’s present living environment presents a serious question concerning the child’s physical health or welfare; or both parents, the surviving parent, or the managing conservator either filed the petition or has con­sented to it.  Grandparents can also apply for some limited visitation if their child has been incarcerated for at least ninety (90) days.

How do I get custody? When a parent wants to establish conservatorship the par­ent has the right to file a lawsuit called a “Suit Affecting the Parent Child Relationship” (this’ commonly abbreviated to “SAPCR”, pronounced “Sap-Sir”) or a Suit to Establish the Parent Child Relationship. The lawsuit will ask the court to decide issues of parentage, conservatorship, visitation and child support. The parent who wants to pay child support or a parent who wants the other parent to pay child support may hire a private attorney or go to the office of the Attorney General (AG or child support office) and establish a child support order. This type of order may also be han­dled inside a suit for divorce.

During the course of the suit, issues regarding parentage may be raised. If one of the parties claims the father is not the biological father, genet­ic testing may be ordered. The person asking for the paternity test normally pays for his/her costs for the testing, plus the costs for testing the child. The court will deter­mine who will pay the fees for the other parent’s test. Genetic testing normally deter­mines if the man will be considered the legal father of the child. However, certain exceptions apply if the child already has a presumed father under the law.

Filing for custody through the Texas Attorney General’s Office. A suit for child support may be filed with the Texas Attorney General’s office. The Attorney General represents the state’s interest for parents to collect child support. The Attorney General therefore represents the state, not either of the parents. Pursuant to a request by one of the parents, or the state if a parent is receiving state benefits, such as welfare or Medicaid, the Attorney General may file a lawsuit to establish a child support order. Once ordered, the child support will be deducted from the paycheck of the parent who is ordered to pay. When establishing the child support order, the Attorney General typ­ically also addresses the issues of conservatorship and visitation. Often the parents are appointed as joint managing conservators and the parent ordered to pay child support is awarded visitation pursuant to the standard possession schedule. If the parents dis­agree as to conservatorship or visitation, then the parties should consider hiring private attorneys to ensure their concerns are properly brought to the attention of the court. The AG will not typically assist parents with these matters since they represent the State, not the parents.  Also, our clients complain that while working with the AG’s office is free, there is a down-side.  You can’t reach anyone on the phone, there are long waits for hearings, and there is crowding at their offices.  Many people who can afford it instead choose to go through a private law firm, such as Buckner & Cross.

Filing for custody when the parents are married to each other: When the child’s parents are married to each other, and no prior court orders exist, each parent has equal rights to the child. This means that if one parent wants to move out and take the child, that parent has the right to do so. The police will not get involved without a court order. This remains the case until a court order establishes the rights and duties of each parent, determines which parent the child will primarily reside with, and when each parent shall have possession of the child. This can be done through a divorce action or through a separate suit affecting the parent child relationship (such as a Texas Attorney General’s case).

Filing for custody when the parents are not married to each other but had a child together: When two people are not married to one another and have a child together, the father must legally prove he is the father in order to have parental rights under Texas law. The father’s legal rights may also be established by the mother filing a suit to establish parentage and requesting child support.

One way to establish parental rights is for the father and the mother to sign an acknowledgement of paternity and file it with the paternity registry in the Bureau of Vital Statistics in Austin, Texas. The father is required to register before the birth of the child or not later than 31 days after the child is born. If the father fails to register with the paternity registry, he may be prevented from asserting any legal rights as a father to the child in the future.

The father may also file a separate lawsuit to establish that he is the father to the child. The court may require the father to have genetic testing done to prove he is the biological father. Instead of genetic testing, the court may accept an acknowledgement of paternity signed by the father and mother agreeing that the man is the father of the child. In either case, the father is then legally found to be the father of the child and a parent under Texas law. This gives the father certain legal rights and duties to the child, including the right to ask the court for custody.

Filing for custody when the parents are not married to each other, have a child together, and the mother is married to someone else. When the mother is married to someone else the man the woman is married to is presumed to be the father to the child. This means that the husband has all the rights and duties to the child and the man who thinks he is the father has none. The man who believes he is the father to the child still has the duty to register with the paternity registry. If the child has been raised by the husband, up until the time the child is four years old the man who believes he is the father may also file a separate lawsuit objecting that the husband is the father to the child. The court will order genetic testing to prove which man is the father to the child. If the man who believes he is the father is proven to be the father, he will have the rights and duties of a parent under Texas law and will have the same right to ask for custody as the mother. If the mother and husband are still married to one another but are in the process of divorce, the mother must notify the court of the possibility that there is another man who could be the father so that person can be notified. The husband also has the right to be tested to show he is not the father to the child. If it is proven that the husband is not the father to the child, and the court finds it is in the best interest of the child, then the husband will not be required to pay child support and the husband will not have any legal rights or visitation with the child.

Other potential issues in a custody suit. When the decision of where the child will primarily live is disputed, investigators may be appointed by the court to assist the court in reaching a decision. The court also may impose certain limitations or require­ments on the parents to protect the best interest of the children.

Social Studies. The social study is a court ordered investigation of the circum­stances and home life of the parents and the child. It is usually conducted by a social worker, who will visit the home of each parent and interview the child, the parents, and other persons involved in the child’s life. When the investigation is finished, the social worker will write a recommendation to the court as to what would be in the best interest of the child, including where the child should primarily live and/or what type of visitation schedule would be best. Normally the parties are ordered to each pay for half the cost of the social study.

Psychological or Psychiatric Evaluations. A psychological or psychiatric evalu­ation is a court ordered evaluation of a person or child involved in the lawsuit. The evaluation is conducted by a licensed psychologist or psychiatrist who will provide a written report to the court. The judge will determine if one or both parties will be responsible for payment of the evaluation.

Amicus Attorney. An Amicus Attorney is an attorney appointed by the court to represent the best interest of the child. The attorney will meet with the child and each parent, and will investigate the concerns and facts of the case. The Amicus Attorney may call witnesses, ask questions and make an argument to the court the same as any other attorney in the case. The court will determine if one or both parties will be responsible for payment of the Amicus Attorney’s fees.

Attorney Ad Litem. An Attorney Ad Litem is an attorney appointed by the court to represent the wishes of the child. Because the child is his client, he must adhere to the rules of confidentiality and undivided loyalty to the child. The attorney ad litem argues on the child’s behalf. The Attorney Ad Litem may call witnesses, ask questions and make an argument to the court the same as any other attorney in the case. The court will determine if one or both parties will be responsible for payment of the Attorney Ad Litem’s fees.

Guardian Ad Litem. A Guardian Ad Litem is a person appointed by the court to represent the best interests of a child. The guardian ad litem is usually a volunteer trained to be a Court Appointed Special Advocate (CASA) and is normally not an attorney.

Drug Testing. If allegations arise concerning a parent using illegal drugs, the court may order one or both parents to submit to immediate or random drug testing. The judge will determine if one or both parents will be responsible for payment of the testing. The judge may also impose an order prohibiting one or both parents from using illegal drugs or alcohol while the child is in his or her possession.

Prohibition on overnight visitors. Sometimes the court will prohibit one or both parents from having unrelated overnight visitors of the opposite sex (or the same sex if a parent is homosexual) while the child is in his or her possession. This order may be on a temporary or ongoing basis. The purpose for this order is to maintain stabili­ty for the child.

Child’s Preference. Texas law used to provide that when a child was age twelve (12) or over, he or she could sign a state­ment choosing the parent with whom the child primarily wants to live. This statement was filed with the court and is considered persuasive evidence to the judge. However, the child’s choice was subject to the approval of the court, and the court had to make the final ruling as to where the best place would be for the child to live.  The Texas legislature changed this law recently and kids are no longer able to make a written preference in Texas.

Geographic (Domicile) Restriction. If the parents are named Joint Managing Conservators, the court is required to establish a geographic area for the child’s primary residence. The court may order the child to maintain primary residence within that county, or that county and its surrounding counties for as long as the possessory par­ent resides in that county or a contiguous county. The courts favor this type of domi­cile restriction, and it is commonly ordered because it is normally in the best interest of the child to live close to both parents. If the custodial parent moves far away, it cre­ates a hardship for the other parent to exercise his/her visitation. The court wants the child to have the opportunity to maintain close and meaningful relationships with both of his/her parents. If the primary parent does not want a domicile restriction on the children, that parent will have to show the court a compelling reason why a move away from the other parent would be in the best interest of the child.

For the past few years, the majority of cases I have been going to trial on involved the issue of relocation.  The courts are very often requiring that the residence of the children be restricted to local areas.  (If you get divorced in Amarillo, your residence will likely be restricted to Potter & Randall Counties.  If you get divorced in a rural county, such as Swisher County, you can expect the court to rule that your residence is restricted to one of the counties that is contiguous to Swisher County.)  The courts are very serious about parents maintaining close connections to both of their parents!

This article is not intended to be legal advice and is not a substitute for legal representation by an attorney. You are encouraged to seek the advice of your own attorney to answer any specific legal questions you may have.