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: A sole managing conservator has the exclusive right to make all decisions regarding the child. A possessory conservator has only limited parental rights when he or she has actual possession of the child. The third type, joint managing conservators, share in making decisions regarding the child.

Joint Managing Conservators

     In 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 Rights

     Unless limited by court order, a parent appointed as a conservator of a child has at all times these rights:

Right to Designate Primary Residence

     All 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 Child

     If 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.

Possession Order

     The other major issue that is decided based on the best interest of the child is the "possession order," which contains the specific times and places where the parties are allowed to have possession of and access to the child. If the parties are unable to agree on the terms of the possession order, then the judge decides the posssession order. Most possession orders state that the parties may have possession of the child at all times mutually agreed upon by them in advance, and if they fail to mutually agree, then they must follow the possession order. Because the parties are the ones most familiar with their own work and home schedules, it is often better for them to reach an agreement regarding the particular terms of their possession order.