Usually a misnomer due to its frequency in popular culture, “primary
custody” is not an actual legal term recognized in Texas. Texas
courts will typically appoint both parents as “joint managing conservators”
or “JMCs” for their children, and what people commonly refer
to as “primary custody” tracks most closely with the party
who is granted an exclusive right to determine “primary residency”
of the child.
To better understand this concept, I find it helpful to think about all
the different rights and duties of a parent as strands of a rope. Prior
to court involvement, all those rights and duties are “together”
unified with both parents. Both parents have the full complement of rights
and duties at all times, and neither parent has any authority to stop
the other from exercising those rights, or conversely the obligation to
take any particular action in regards to the child.
There are pros and cons to this situation, but the main downside, and the
one that the court most specifically tries to address, is that in the
event of a disagreement there is no clear way to make a decision or to
break a tie. If parents are on the same page, this often isn’t an
issue at all as there is communication, compromise, and a mutual desire
to do what is best for the child; however, if the parents are not on the
same page, it is quite important to have predictability in knowing who
is in charge in a given situation.
custody order (often called a ‘Final Decree of Conservatorship”) will
spell out in detail as many different eventualities as possible and which
parent has which rights and duties in those given situations. The parent’s
right to make certain decisions for the child, including decisions about
medical care, mental health care, and educational decisions is defined
as “conservatorship.” Under Tex. Family Code § 153.131,
Texas courts presume that both parents should each have a say in important
decisions concerning their child, in the absence of an emergency or other
factors, and to share in equal custody. (For a discussion on the factors
see previous blog entry on best interest of the child factors). However,
there is one particular right that tends to be highly contentious, and
from which a lot of other rules and laws are based: “the exclusive
right to determine primary residence of the child”.
If you are interested in filing for divorce or modifying a current family
court order in Denton County and Collin County,
schedule a consultation with CokerLegal today.