Conservatorship and Possession
In family courts "custody" includes conservatorship and possession, which are two separate rights. The term “conservator” refers to a person having parental rights, privileges, powers and duties. There are three types of conservators:
- sole managing conservators;
- joint managing conservators; and
- possessory conservators.
Joint Managing ConservatorsIn Texas, it is presumed that both parents should be joint managing conservators unless it is not in the child’s best interest. Joint managing conservatorship does not require that each of the joint conservators have equal or nearly equal periods of physical possession of and access to the child.
If the court does not appoint a parent as a sole or joint managing conservator, the court will then appoint the parent as a possessory conservator, unless the court finds that it would endanger the physical or emotional welfare of the child. If both parents are appointed as conservators of the child, the court specifies the parental rights and duties that are to be exercised (1) by each parent independently; (2) by the joint agreement of the parents; and (3) exclusively by one parent.
Conservator RightsUnless limited by court order, a parent appointed as a conservator of a child has at all times these 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;
- to access 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;
- 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.
Right to Designate Primary ResidenceAll of the conservator rights are divided and /or shared according to what the parties agree or the court decides. Under Texas law, there is only one right that cannot be shared jointly, and that is the right to decide where the child’s primary residence will be. Much of the litigation in family courts is about who gets to decide the child's primary residence. This is because the parent having the right to decide the child’s primary residence typically gets the exclusive right to receive child support from the other parent, as well as the exclusive right to make educational and medical decisions concerning the child. In awarding these rights, the court usually requires that the parent making educational and medical decisions must first discuss the matter with the other parent.
Best Interest of the ChildIf the parties are unable to agree on the issue of conservatorship, then they may have either the judge or jury decide conservatorship in a trial. When the judge or jury decides conservatorship, their decision is based on the “best interest of the child,” which includes the following factors.
- the desires of the child;
- the emotional and physical needs of the child now and in the future;
- the emotional and physical danger to the child now and in the future;
- the parental abilities of the individual seeking custody;
- the programs available to assist these individuals in promoting the best interest of the child;
- the plans for the child by these individuals or by the agency seeking custody;
- the stability of the home or proposed placement;
- the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one;
- any excuse for the acts or omissions of the parent.
- the amount of time a parent has spent and currently spends with the child;