Texas uses the term conservatorship to describe the rights, responsibilities and duties of parents in raising their children. This term also describes what most people think of as “custody.” Conservatorship or custody does not define the amount of time each parent will have with the child. It only addresses the legal rights and duties of the parents. When the parents are married to each other, and no prior court orders exist, each parent has equal rights to the child. This means that if one parent wants to move out and take the child, that parent has the right to do so. The police will not get involved without a court order. This remains the case until a court order establishes the rights and duties of each parent, determines which parent the child will primarily reside with, and when each parent shall have possession of the child. This can be done through a divorce action or through a separate suit affecting the parent child relationship.
In Texas there are two kinds of conservatorship:
sole managing conservatorship; and
joint managing conservatorship.
The presumption is that joint managing conservatorship is in the best interest of the child. However, the court will consider many factors in deciding which type of conservatorship is appropriate. The “best interest of the child” is always the court's primary concern. The court is not allowed to discriminate against a parent because of sex or marital status. All factors surrounding the child's life may be relevant to determine what is in the child's best interest, including if there has been a history of violence between the parents or violence against the child. If the court finds credible evidence of a history or pattern of family violence, the court is not allowed to appoint the parent who committed the violence as a joint managing conservator, nor should the court appoint that parent as a sole managing conservator. Evidence of family violence may include testimony by the parent who was the victim, witnesses to the violence, pictures, doctors or hospital records, or counseling records or the issuance of a protective order against a parent.
Sole Managing Conservatorship:
In rare circumstances, one parent may be appointed as the sole managing conservator. When a parent has sole managing conservatorship, that parent has superior rights in raising the child. That parent also has the most responsibility in raising the child. As a sole managing conservator (often referred to as SMC,) that parent has the right to establish where the child will live, the right to consent to any medical treatments, the right to receive child support payments, the right to represent the child in any legal action, the rights to consent to marriage or enlistment in the armed forces, the right to make education decisions, the rights to any earnings by the child, and the right to apply for a passport for the child.
Examples of some reasons why the court might appoint a sole managing conservator:
There is a history of family violence, neglect or abuse by the other parent that might endanger the child;
There is a history of drugs, alcohol or other criminal activity by the other parent that might endanger the child;
the other parent has been absent from the child's life;
there is a history of extreme conflict between the parents over educational, medical or religious values;
parent does not wish to be appointed as a joint managing conservator.
The court will normally appoint the parent who is not the sole managing conservator as a possessory conservator. In rare circumstances, the court may find that it would not be in the best interest of the child to appoint the other parent as a possessory conservator. Usually this is only done in cases where the child may be in danger of physical or severe emotional abuse.
A parent appointed as a possessory conservator (PC) has the same rights and duties that any parent has to their child. The parent has the duty to support the child even if there is no formal child support order signed by the court.
The possessory conservator has the right to receive information from the other parent about the child's health, education and welfare, the right to talk to the other parent (if possible) before decisions are made about the child's health, education and welfare, the right to have access to the child's records, to talk to the child's doctors, the right to talk to the school about the child and attend school activities, the right to be designated on the child's records as an emergency contact person, the right to consent to medical treatment during an emergency, and the right to manage the estate of the child.
Joint Managing Conservatorship:
Joint Managing Conservatorship When a parent is appointed as a joint managing conservator (referred to as JMC), the parents will often share the above parental rights duties and powers. However, even in a JMC situation, the court must designate one parent who will be responsible for establishing the location of the child's primary residence and designate the geographic location within which the child's residence must be located. This parent is called the primary joint managing conservator, also referred to as the “custodial parent.” The other parent is called the “possessory conservator,” because that parent has the right to possession of the child at certain times, and is commonly referred to as the “non-custodial parent.” Aside from the decision regarding the location of the child's primary residence, most other major parenting decisions are shared between the primary and possessory joint managing conservators. The presumption under the law is that joint managing conservatorship is in the best interest of the child.
Non-Parent or Grandparent Conservatorship:
In limited circumstances, a person other than the parent can be granted conservatorship.
Nonparent – A person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months has standing to ask for custody if the six-month time period has not ended more than 90 days prior to filing the suit.
Foster Parent – A foster parent can file for custody if the child has been in that person's home for at least 12 months, ending not more than 90 days pre-ceding the date the suit is filed.
Grandparent – A grandparent may file for custody if there is satisfactory proof to the court that the child's present living environment presents a serious question concerning the child's physical health or welfare; or both parents, the surviving parent, or the managing conservator either filed the petition or has consented to it.
When a parent wants to establish conservatorship the parent has the right to file a lawsuit called a Suit Affecting the Parent Child Relationship or a Suit to Establish the Parent Child Relationship. The lawsuit will ask the court to decide issues of parentage, conservatorship, visitation and child support. The parent who wants to pay child support or a parent who wants the other parent to pay child sup- port may hire a private attorney or go to the office of the Attorney General (AG or child support office) and establish a child support order. This type of order may also be handled inside a suit for divorce. During the course of the suit, issues regarding parentage may be raised. If one of the parties claims the father is not the biological father, genetic testing may be ordered. The person asking for the paternity test normally pays for his/her costs for the testing, plus the costs for testing the child. The court will deter-mine who will pay the fees for the other parent's test. Genetic testing normally deter-mines if the man will be considered the legal father of the child. However, certain exceptions apply if the child already has a presumed father under the law.
Filing for Child Support through the Texas Attorney General's Office:
A suit for child support may be filed with the Texas Attorney General's office. The Attorney General represents the state's interest for parents to collect child support. The Attorney General therefore represents the state, not either of the parents. Pursuant to a request by one of the parents, or the state if a parent is receiving state benefits, such as welfare or Medicaid, the Attorney General may file a lawsuit to establish a child support order. Once ordered, the child support will be deducted from the paycheck of the parent who is ordered to pay. When establishing the child support order, the Attorney General typically also addresses the issues of conservatorship and visitation. Often the parents are appointed as joint managing conservators and the parent ordered to pay child support is awarded visitation pursuant to the standard possession schedule. If the parents dis-agree as to conservatorship or visitation, then the parties should consider hiring private attorneys to ensure their concerns are properly brought to the attention of the court. The AG will not typically assist parents with these matters since they represent the State, not the parents.
Filing for custody when the parents are not married to each other but had a child together: When two people are not married to one another and have a child together, the father must legally prove he is the father in order to have parental rights under Texas law. The father's legal rights may also be established by the mother filing a suit to establish parentage and requesting child support. One way to establish parental rights is for the father and the mother to sign an acknowledgement of paternity and file it with the paternity registry in the Bureau of Vital Statistics in Austin, Texas. The father is required to register before the birth of the child or not later than 31 days after the child is born. If the father fails to register with the paternity registry, he may be prevented from asserting any legal rights as a father to the child in the future.
The father may also file a separate lawsuit to establish that he is the father to the child. The court may require the father to have genetic testing done to prove he is the biological father. Instead of genetic testing, the court may accept an acknowledgement of paternity signed by the father and mother agreeing that the man is the father of the child. In either case, the father is then legally found to be the father of the child and a parent under Texas law. This gives the father certain legal rights and duties to the child, including the right to ask the court for custody.
Visitation/Possession and Access:
Texas law describes visitation as possession and access. The parent who gets visitation is the person with whom the child does not primarily live.
There are several types of visitation in Texas:
standard possession order;
modified possession order;
modified under three possession order; and
supervised visitation order.
Generally, the courts will allow the parties to work out an arrangement between themselves that they believe is best for the child. The parents can usually schedule visits by agreement, but when they cannot agree, the court order is considered the “back up.” Sometimes the court will not allow visitation due to a history of family violence or a potential danger to the physical or emotional welfare of the child. If visitation will be limited, the court may order the visitation be supervised with a neutral third party or a private organization that provides supervised visitation options to parents. If a private agency is used, the visiting parent may be responsible for payment of the agency's fees to visit the child. Absent such a limitation, the parties may agree on different schedules and times even though they have a specific court order. Some believe it is best to follow the terms of the court order so each parent knows the schedule in advance and consistency is maintained for the child.
Standard Possession Order:
Visitation arrangements can have many variations. In fact, parents may agree to almost any schedule regarding visitation. However, if parents cannot agree, child visitation will generally follow a schedule developed by the Texas legislature that is designed to be fair and workable for both parents in most circumstances.
Generally, the standard possession order (“SPO”) provides that the possessory (visiting) parent is granted visitation of the child beginning at 6:00 p.m. every first, third and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday, as well as every Thursday evening, from 6:00 p.m. to 8:00 p.m. The possessory parent may request an extended version of this schedule where he or she would have possession of the child from the time school is dismissed on the first, third and fifth Fridays until school resumes on Monday morning, and on Thursday evenings from the time school is dismissed until Friday morning. All holidays, including Thanksgiving, Christmas (winter) and spring break are divided between the parents, giving one parent the right to spend a particular holiday with the child every other year. The SPO also provides for the possessory parent to have 30 days with the child during the summer, or 42 days if the child lives more than 100 miles away from the other parent. If the visiting parent lives over 100 miles away, that parent would also be given possession of the child every year for spring break.
What is a modified possession order? The modified possession order means the terms of possession are changed from the typical standard possession order (described above). The modified possession order terms will vary depending on the needs of the parents, the age of the child, and specific issues of the case. Some examples of modifications may be adding additional visitation time as the child increases in age, or accounting for a parent's work schedule.
What is a modified under three possession order? The court may consider the needs of a child to determine if visitation should be limited while the child is under the age of three. This modified order may state the child shall not have overnight visitation with the other parent until the child reaches a certain age. For example, the order may state the child visit on Saturday and Sunday from 10:00 a.m. to 4:00 p.m. or in the evenings from 6:00 p.m. to 8:00 p.m. The court will consider the age and needs of the child, including the child's normal structure and routine, as well as the history of each parent's involvement with the child. If the visiting parent has already established a schedule of caring for the child overnight, it is unlikely the court will put new limitations on the visiting parent's schedule. If such limitations are put in place until a child reaches a certain age, the parent who has primary possession of the child is expected to cooperate with the visiting parent to insure the visiting parent has ample visitation time without unreasonably disrupting the child's routine and environment. Both parents should also provide the other with a list of the child's schedule and routine while the child has been with him or her so the schedule may be maintained.