What Is Conservatorship?
Texas law does not use the term custody when referring to a person’s right to have a child live under their roof, and make decisions for the child—such as determining what school they go to, decisions regarding their invasive medical or dental care, and reasonable discipline. Instead, these rights are referred to as conservatorship. The overall deciding factor in determining conservatorship and possession and access of a child is that child’s best interest.
According to Texas Family Code § 153.073, unless limited by court order, a parent conservator has the following rights:
- “to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
- to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
- of access to medical, dental, psychological, and educational records of the child;
- to consult with a physician, dentist, or psychologist of the child;
- to consult with school officials concerning the child’s welfare and educational status, including school activities;
- to attend school activities, including school lunches, performances, and field trips;
- to be designated on the child’s records as a person to be notified in case of an emergency;
- to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
- to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.”
Naturally, different families have different needs, experiences, and values. To that extent, Texas law recognizes different arrangements regarding child conservatorship. These arrangements are similar to other jurisdictions that use terms like shared custody and sole custody. However, Texas uses the terms joint managing conservatorship, sole managing conservatorship, and possessory conservatorship.
Joint Managing Conservatorship
Generally, two biological or adoptive parents of a child jointly act as the child’s conservators. They both share the rights and responsibilities of parenthood.
In arrangements involving joint managing conservators, the court is required to make an order specifying the following:
- Rights and duties each parent can exercise independently
- Rights and duties of the parents require a joint agreement between them
- Rights and duties exclusively granted to one parent
Texas law presumes that appointing both parents as joint managing conservators is in the child’s best interest, as both parents jointly share in the duties of parenting, despite living separately.
However, an arrangement involving joint managing conservatorship does not necessarily imply that the parents have equal physical possession and access to the child. The legal presumption that joint managing conservatorship is in the best interests of the child does not mean that equal possession is also presumed to be in their best interest.
Sole Managing Conservatorship
A parent who is appointed sole managing conservator has all the rights that a parent conservator has under Section 153.073, in addition to certain rights that are exclusive to them.
Texas Family Code § 153.132 governs the rights of a sole managing conservator, which include:
- “the right to designate the primary residence of the child;
- the right to consent to medical, dental, and surgical treatment involving invasive procedures;
- the right to consent to psychiatric and psychological treatment;
- the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
- the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
- the right to consent to marriage and to enlistment in the armed forces of the United States;
- the right to make decisions concerning the child’s education;
- the right to the services and earnings of the child;
- except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government; and
- the right to apply for a passport for the child;
- renew the child’s passport; and
- maintain possession of the child’s passport.”
If the court appoints one parent as the sole managing conservator, the other parent will typically be designated as a possessory conservator unless such an appointment is contrary to the child’s best interest and would endanger the child’s emotional or physical welfare.
While it is the public policy of the State of Texas that children have frequent and continuing contact with parents who can act in the child’s best interest, there are times that possessory rights are restricted. A possessory conservator may be subject to certain restrictions on possession if the Court finds that possession without such restrictions would pose a danger to the child’s safety and welfare. In these cases, supervision of the visits may be an option for the parties and Court to consider. The Court is prohibited from making an order restricting possession of or access to a child based on the payment or nonpayment of child support.
In a bench trial or a hearing, if a child’s parent or court-appointed representative files a motion for the Judge to conduct an interview with the child, the Court must interview a child who is 12 years of age or older making such a request. That interview focuses on the child’s wishes as to who shall have the right to determine their primary residence or to conservatorship. A court may interview a child younger than 12 years old on the Judge’s own request as well. These interviews are conducted in the Judge’s office or a courtroom closed to the public and the parents are not present. While this gives the child an opportunity to be heard, this interview does not diminish the discretion of the Court in determining the overall best interest of that child.
Nonparent as Managing Conservator
A Court can also appoint a nonparent as a managing conservator or possessory conservator of a child in the right set of circumstances. For such an appointment as a managing conservator, the Court must find that appointment of a parent or parents as managing conservator would not be in the best interest of the child because the child’s physical health or emotional development would be significantly impaired. There are many factors that are considered for nonparent conservator cases. If you are wanting to learn more about your options as a nonparent conservator (grandparent, stepparent, family friend) please reach out to the team at Coker, Robb & Cannon so we can help you evaluate your specific case needs.
You Can Count on Coker, Robb & Cannon
Cases involving the care of minor children and the division of parental responsibilities can be emotionally and legally challenging to handle. To make sure you have someone who can take on sophisticated legal issues such as child custody, you should consult an experienced attorney from Coker, Robb & Cannon, Family Lawyers.
For a case evaluation with one of our distinguished attorneys, please call us at (940) 293-2313 or complete our online request form today.