Child Custody – Also Known as Conservatorship
If there are minor children of the parties, all divorce decrees and settlements will contain orders governing the custody, possession and support of the children after the divorce. A “child” is any minor who was born or adopted by the parties. Once a child turns eighteen, the court’s jurisdiction over the adult child ends (with several exceptions regarding child support)
The Texas Family Code speaks in terms of post-divorce “conservatorship” of children, meaning the legal status between the children and their parents after the divorce as it relates to controlling the children’s lives, having possession of and access to the children, and supporting the children.
The Code expressly sets out a list of the rights, privileges, duties and powers of parents that may be given to both parents or to one parent. In a nutshell, these rights and duties may be categorized into three areas: (1) the right to make major decisions regarding the children; (2) the right to have physical possession of the children; and (3) the duty to financially support the children. Conservatorship orders divide these various rights and duties among the parents after the divorce.
The Code refers to two types of conservators: (1) the managing conservator(s) and (2) the possessory conservator. These terms are confusing, because the “managing” conservator is, generally speaking, the primary custodian of the children, while the “possessory” conservator is not the primary custodian of the children (the “possessory conservator” merely has some “possessory” rights to the children, e.g., visitation).
A “managing conservator” is generally given all of the rights, privileges, duties and powers of a parent, to the exclusion of all others, including the other parent, except as otherwise ordered by the court. In short, the managing conservator is the primary custodian of the children, and (1) has the right to make all of most of the major decisions governing the children’s lives, (2) has the primary physical possession of the children (custody) and (3) has the right to receive child support on behalf of the children. As discussed below, there are now two types of managing conservators, “sole managing conservatorship” and “joint managing conservatorship”.
A “possessory conservator” is generally given (1) only a handful of rights and duties to make decisions for the children which can be exercised only when the children are actually in the physical session of the possessory conservator, (2) the right to certain limited times of possession of the children (often referred to “visitation rights”), and (3) the duty to pay the managing conservator child support for the benefit of the children.
Types of Managing Conservatorship
A managing conservatorship can be either a “sole managing conservator” or a “joint managing conservatorship” [Unless very extreme circumstances exist, a parent will be appointed the managing conservator of the children. A non-parental managing conservator(e.g., grandparent) can only be appointed if the appointment of a parent would create an extreme danger to the child, or unless the parents agree.]
Sole Managing Conservatorship
A “sole managing conservatorship” exists when one parent alone is appointed the managing conservator of the child and given virtually all of the rights, privileges, duties and powers of a parent to the exclusion of the other parent. In such event, the other parent will be the “possessory conservator”.
Joint Managing Conservatorship
The law presumes that it is in the best interest of the child or children that both parties are to be “joint managing conservators” of the children. This is true, whether or not the parties agree to the joint appointment. Thus, both parents are, jointly, managing conservators, and neither is a possessory conservator. Joint managing conservatorship is often agreed to by the parties. While a court is not required to appoint joint managing conservatorship, even when the parties request it, the party who does not want a joint managing conservatorship must prove to the court that a joint managing conservatorship is not in the best interest of the children.
It should be noted, however, that joint managing conservatorships vary. A joint managing conservatorship order does not determine the periods of time the children spend with each parent nor does it determine whether or what amount of child support will be paid. Although more courts are moving toward an equal possession schedule, the amount of time the children spend with each parent is dependent upon the determination of the children’s best interest after all circumstances and factors are considered. Joint managing conservatorship is almost always ordered, and the only variance is what rights, periods of possession and child support each party will have.
Possession of and Access to Child (e.g., Visitation)
The managing conservator and the possessory conservator or the joint managing conservators will be given certain exact times of possession of and access to the children. The legislature has by statue adopted what is referred to as a “Standard Possession Order”. Basically, the Standard Possession Order gives the non-custodial parent the right to possession of the children on every first, third and fifth weekend (Friday through Monday morning), every Thursday overnight, 30 days in the summer and one-half of all holidays. Any time arrangement between the parents that is beneficial for the children is acceptable, but, if the judge decides, it is up to the parties to prove what they believe is best for the children.