Custody Overview

By: Rita Boyd, Attorney at Law

The purpose of this article is to give the layman a general overview of the custody laws in the State of Texas.

In Texas, what is commonly referred to as ?custody? is conservatorship. There are two types: Joint and Sole Managing Conservatorship. Conservatorship refers to the rights, powers, and duties each party has as to the child, not how much time each party has with the child. The time a person has with the child is referred to as ?possession.?

Texas law states that it is presumed to be in the child?s best interest for the parents to be appointed Joint Managing Conservators of their child. Section 153.131(b) Texas Family Code. If a party maintains that this is not in the child?s best interest, he has the burden to prove why. Assuming the parties are to be appointed Joint Managing Conservators, the next question becomes, how are the rights, powers, and duties divided among the parents.

The first point to be made is that the rights, powers, and duties do not necessarily have to be divided entirely. A right may be exercised several different ways: independently of the other party, subject to the agreement of the other party, solely by one parent, or exercised by one party after discussion with the other party, (thereby giving one parent veto power).

An example would be in order:

the right to make educational decisions on behalf of the child. This right may be written into a temporary or final order in any of the above ways, i.e.,

Father has the right to make educational decisions on behalf of the child, subject to the agreement of Mother.

Or,

Father has the exclusive right to make educational decisions on behalf of the child.

An order can be custom crafted, to some extent, to fit the individual needs of the parties, as seen above. The rights, powers, and duties that are subject to negotiation and litigation are as follows:

the right to establish 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 of the child;

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;

except as provided by section 264.0111 of the Texas Family Code, 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 duty to manage the estate of the child to the extent the estate has been created by community property or the joint property of the parents.

Other rights that are not so common, but important include:

the authority to apply for a passport for the child;

the right to inherit by and through the child;

the right of the child to inherit, (assuming the parents were not married, or, in the case of termination of parental rights).

What is the difference between Sole Managing Conservatorship and Joint Managing Conservatorship? If a party is appointed a Sole Managing Conservator, he exercises all of the powers listed above independently and exclusively. The other party is then appointed a Possessory Conservator only, meaning, she has the right to possess the child and minimal statutory rights only, (listed below). A Court must choose to award Sole Managing Conservatorship in cases where family violence has occurred. Section 153.004 (b) Texas Family Code. Sole Managing Conservatorship is also available in cases where the Court makes a finding that Joint Managing Conservatorship is not in the child?s best interest because the appointment would significantly impair the child?s physical health or emotional development. Section 153.131 (a) Texas Family Code. Another option the Court has, in extreme cases, is to not appoint a parent anything, award that party no rights whatsoever, and only award that party possession.

A word about family violence: a party that has a credible history of past or present child neglect or physical or sexual abuse cannot be appointed a Joint Managing Conservator. Section 153.004(b) Texas Family Code. This is not commonly known but it is very important. Abuse has a broad definition under Texas law and includes not only the parents of the child, but also the child, spouses, stepchildren, and any person under age 18. In our practice, we have seen a rise in cases of people making allegations of family violence, calling the police, and the alleged perpetrator, typically the man, pleading no contest, (paying the ticket), just to get on with life. This is a huge mistake. Even if the husband and wife have reconciled, the family violence is still on the person?s record and can and will be used against him in the suit affecting the parent-child relationship later. We do see cases where the woman is the alleged perpetrator. However, these cases are not as common as the fact situation described above.

Part two of the family violence problem is that the Court must make special Orders for the protection of the family for possession. In other words, even if you do not want primary conservatorship, you cannot have Standard Possession if you have a family violence or neglect history. Section 153.004(d) Texas Family Code. Our legislature is serious about decreasing the incidence of family violence in our state. The person who ignores this does so at his peril. This section, unlike the conservatorship section, has a two year time limitation. The family violence must have occurred within the two years preceding the suit or during the pendency of the lawsuit.

The right, duties, and powers that each party receives by virtue of being a parent of a child are as follows and are typically non-negotiable:

the right to receive information from any other conservator of the child concerning the health, education, and welfare of the child;

the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;

the right of access to medical, dental, psychological, and educational records of the child;

the right to consult with a physician, dentist, or psychologist of the child;

the right to consult with school officials concerning the child's welfare and educational status, including school activities;

the right to attend school activities;

the right to be designated on the child's records as a person to be notified in case of an emergency;

the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child;

the right to manage the estate of the child to the extent the estate has been created by the parent or the parent's family.

the duty to inform the other conservator of the child in a timely manner of significant information concerning the health, education, and welfare of the child;

the duty to inform the other conservator of the child if the conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter. This information shall be tendered in the form of a notice made as soon as practicable, but not later than the fortieth day after the date the conservator begins to reside with the person or on the tenth day after the date the marriage occurs, as appropriate. The notice must include a description of the offense that is the basis of the person's requirement to register as a sex offender or of the offense with which the person is charged. WARNING: A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE;

the duty of care, control, protection, and reasonable discipline of the child;

the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;

the right to consent for the child to medical and dental care not involving an invasive procedure; and

the right to direct the moral and religious training of the child.

Throughout the article, I have assumed that the parties to the suit affecting the parent-child relationship are just that, the parents. There are different rules and standards of law to be met for grandparents and other persons who are not the biological (or adoptive) parents. Grandparents, aunts and uncles can, in limited circumstances, sue for conservatorship for the child. Section 153.431 Texas Family Code. A grandparent who does not want primary conservatorship, but just wants to see her grandchildren can sue the parents for possession time. Section 153.433 Texas Family Code. Persons having had possession of the child for a significant amount of time can sue for primary conservatorship, assuming the period of time is long enough. Every person must satisfy one or more of the standing statutes to bring their suit or their suit will be barred. In other words, not just anyone can sue you for conservatorship of your child.

In summary, Texas law is complicated and getting more so as our legislature attempts to adapt to the lifestyles of parents today and the needs of Texas children. Anytime you have conservatorship issues, you would be well-advised to seek out the advice of an attorney that practices exclusively in the area of family law. I would be happy to answer any questions you have about the article and I hope it proved informative to you.

Thank you.