What is commonly referred to as child custody, but legally called “conservatorship” in Texas, is an important piece of a divorce and other suits affecting the parent-child relationship and the ongoing relationship between parents and their children after a divorce. It is a component of the legal division of the parent-child relationship in a divorce along with visitation rights and child support. If you are preparing for a divorce in Texas and you have children, it is important that you understand conservatorship, how family law in Texas divides the parental responsibilities and how child custody attorney Adam Kielich can help protect your rights and your relationship with your children.
Conservatorship or Custody?
Many people use the term custody to mean a wide range of rights and duties of a parent or other individual in relation to a child. The Texas Family Code breaks up these aspects of the relationship into three aspects: possession; access and conservatorship. Possession and access relate to the physical presence of the child while conservatorship relates to the rights and duties of a parent or other individual named a conservator of the child.
Possession and access are two different rights. Access relates to the individual’s right to have physical or other forms of access to the child (such as phone calls or emails). Possession relates to the parent or other individual’s right to physical access and exercise care, custody and control over the child. Generally if one has possession of the child he or she has access to the child at the same time but a parent could have access but not possession at the same time. For example, if the kids play soccer on Saturday mornings each parent might have an independent right to attend the games even if only one parent has possession of the child on a given Saturday.
Conservatorship relates to the rights and duties of a parent or other conservator over the children. These rights typically include educational decisions, medical decisions, discipline the kids, where the kids live and so forth. These rights may be shared or independently held. One conservator may have rights another conservator does not. Texas law presumes giving both parents these conservatorship rights is in the best interests of the children but there are alternative arrangements. A parent or other conservator with rights over the children is a managing conservator while a parent who has possession or access to the child is a possessory conservator.
Joint Managing Conservatorship
The most common arrangement in Texas law for parents to divide conservatorship over children is through a joint managing conservatorship. Under a joint managing conservatorship the two parents split managing rights over the children. These rights may be shared, independently held by both, or independently held by one or the other parent. The division of rights and responsibilities can occur in almost any combination. It may favor one parent over the other or divide rights and responsibilities in an equal manner. Dividing rights in a joint managing conservatorship must be a careful decision for both parents because the division of rights will affect the parent’s ability to exercise typical parental duties and in turn affect the parent-child relationship. This arrangement is presumed best for the children under the Texas Family Code but that presumption can be rebutted.
Sole Managing Conservatorship
Sometimes the best interests of the child means one parent will have no managing rights or responsibilities over the child with the other parent having sole managing rights. This relationship is known as sole managing conservatorship. Rather than have both parents acting as managing conservatorship, all of the rights and duties are placed in the hands of the sole managing conservator. The other parent may have some possession or access rights but no other rights over the child. This parent is known as a possessory conservator.
Sole managing conservatorship is typically only awarded by the court when a parent is unwilling or unable to perform the duties of a managing conservator on behalf of the child. Sometimes this occurs when one parent intends to end the parent-child relationship but most commonly occurs because one parent presents a threat to the child. A parent may be a threat to the child due to drug use, domestic violence, criminal background, gang involvement and so forth. Sole managing conservatorship will not be awarded over minor issues such as disagreement on discipline or education although managing rights may be divided among joint managing conservators in a manner that reflects what is best for the child.
How I can help with your custody or conservatorship needs
Custody/conservatorship most often arises in divorces with children although I also help clients establish custodial rights and duties as part of other suits affecting the parent-child relationship between unmarried parents or other family members seeking access to the children. I also assist with modifying existing conservatorship orders from a prior divorce or other lawsuit.My perspective on conservatorship issues is to focus on the well-being of the children and creating positive parent-child relationships rather than just dealing with the mechanics of the conservatorship. Often people—including divorce attorneys—focus on the mechanics of conservatorship such as what hours they want the kids or what decisions they want to make for them. These are undoubtedly important issues but focusing on these issues ignores the larger picture and allows unseen problems to mature into problems down the road. Instead I focus on the goal of what is best for the children and what creates positive relationships with the child and then figure out what balance of conservatorship rights and possession/access to the children best accomplishes those goals.