The following provides a general discussion of the most common issues and misconceptions that arise in cases involving children. As always, the following discussion does not serve as a substitute for obtaining an attorney and discussing your case with an attorney. Every case involves its own fact-specific twists, and even if your case seems to fit the common scenarios described below perfectly, that does not mean that exceptions do not exist or that a judge will perceive it that way. Having an experienced attorney who knows how to prepare a case, how to negotiate with opposing parties, and how to present a case in court is just as important as knowing the brief synopsis of the law below.
Not "Custody," but "Conservatorship"
The Texas Family Code does not use the term "custody" in describing a parent's legal relationship with a child, but instead employs the more legalistic term "conservatorship." Although somewhat formalistic, this terminology implies less of a focus on children as inanimate property items of the parents (as the term "custody" might imply) and instead focuses more on the rights, responsibilities, benefits, and burdens of the parent-child relationship: that parents are there to "conserve and protect" a child, not merely possess a child like a table or chair. People might inadvertently use the terms "custody" in discussions because the term is used so widely in the press, media, and common parlance (as well as on this page), but the legal difference between "custody" and "conservatorship" should remain clear no matter what terms people might casually use or misuse in conversation. There is no such legal thing as "full custody," "sole custody," "joint custody," "primary custody," or any other type of "custody" over children under Texas law.
Types of Conservatorship: Managing and Possessory
There are two types of conservatorships in Texas: managing and possessory. Managing conservators essentially enjoy all the rights and responsibilities one would normally associate with a parent. These rights include the right to possession and access to the child and the right to inherit and bequeath assets through the child. Managing conservatorship also gives a parent the right to "manage" the affairs of the child while that child remains a minor. In particular, managing conservators hold the authority to "manage" the following decisions for the child:
- Schooling and Education
- Medical, Dental, and Surgical Care
- Psychological and Psychiatric Care
- Religious Upbringing
- Moral Principles, Socialization, and Behavior
- Financial Welfare
- Legal Rights and Representation
- Employment (as a teenager)
- Involvement in Arts, Camps, Clubs, Sports, and Other Extra-Curricular Activities
- Consent to Marriage
- Consent to Armed Forces Enlistment
Possessory Conservators, on the other hand, essentially only enjoy the right to "access to" (or "visitation" with) the child under a defined schedule, as well as the right to inherit and bequeath assets through the child. A court must appoint a parent as either a managing or possessory conservator unless it finds that allowing possession and access would endanger the physical or emotional welfare of the child and that it is not in the child's best interest to grant such possession or access. Consequently, in rare cases of abuse or endangerment, a court may severely restrict or entirely eliminate a parent's right to possession or access to a child.
All parents, regardless of whether they are managing or possessory conservators, hold an obligation to support a child: to provide food, shelter, clothing, education, and medical and dental care. All parents also all hold a duty to care for, control, and protect a child, although the exercise of these duties will, of course, depend upon how often the child is in their possession and control. All parents owe each other a duty to keep the other parent informed of significant information concerning the healh, education, and welfare of their children. Finally (and somewhat contrary to the impression one might get from a daily visit to the local Wal-Mart), all parents owe a duty to reasonably discipline and control their children.
Types of Managing Conservatorship: Sole and Joint
There are also two types of managing conservatorships: sole managing conservatorship, where one person holds all managing conservatorship rights and responsibilities listed above; and joint managing conservatorship, where two (or more) persons share the rights and responsibilities of a managing conservatorship.
Texas law presumes that both parents should be appointed "joint managing conservators," and contains limited grounds for rebutting that presumption. In general, most interested parents who have not committed family violence or otherwise do not pose a risk of harm to the child will be appointed as a joint managing conservator. However, the nuances of "joint managing conservatorship" differ from the layman's understanding of the concept of "joint custody" that exists is other states. The concept of "joint managing conservatorship" focuses parents on the rights and responsibilties that go into a meaningful parent-child relationship, as opposed to mere physical presence or dominion over the child.
The Exclusive Right to Designate the Primary Residence
The designation of "joint managing conservatorship" does not end most disputes over children. Most of the hotly contested disputes instead focus upon obtaining the exclusive right to designate the primary residence of the children. "Joint conservatorship" does not entail equal time with the child, although that does happen in rare cases (mostly by agreement of the parents). In most cases, the court grants one parent the exclusive right to designate the primary residence of the child. That parent, in common parlance, becomes the "primary caretaker" of the child, whereas the other becomes what some might refer to as the "non-custodial" or "non-primary" parent. (Even though Texas has tried to eliminate the "custodial" concepts from the Family Code, the tendency to pigeon-hole parental roles into common terms still exists.) However, the actual impact of receiving that right does not at all exclude the other parent from the children's lives nearly as much as one might fear or expect.
Not an All-or-Nothing, Win-Lose Situation
Although a "custody battle" sometimes evokes a win-lose mentality between the parents, the "winners" of this battle often do not win as much as they initially believe and the "losers" do not lose so much as they might fear, either. Again, what is usually at stake is just the right to designate the primary residence of the children, not the ability to maintain a meaningful and significant relationship with your children. Texas law provides default standard periods of possession for joint managing conservators who do not receive the exclusive right to designate the primary residence of the child. Commentators have estimated that despite the "primary/non-primary" lingo, a non-custodial parent may ultimately enjoy up to 45% of the non-school-hour "quality" time with his or her children, including extended summer possession, vacations, alternate weekends, holidays, and some weekday evenings. Consequently, an active and truly-interested parent may still remain a significant part of his or her child's life even without being the "primary caretaker." Additionally, all other medical, schooling, religious, social, travel, and athletic decisions generally remain jointly shared unless the parents fight so much that joint responsibility for these decisions is unworkable.
Consequently, the "non-primary" parent may still enjoy a significant role and relationship with their children. Indeed, when viewed in the proper perspective (namely, focusing on the children and not the battle between the parents), many "non-primary caretaker" parents actually spend more quality time and develop an even stronger relationship with their children than they enjoyed prior to a divorce or a non-marital custody battle. Because it commonly is not an "all or nothing" situation under Texas Law, many parents have actually noticed that their relationship with their children has ironically strengthened after a divorce. Indeed, that was part of the purpose behind discarding the "custodial" concepts from Texas law: to encourage both parents to maintain and develop meaningful relationships with their children, even if the romantic relationship between the parents did not work out.
"Best Interests of the Child"
In determining conservatorship, possession or access to a child, or the exclusive right to designate the primary residence, Texas law states that the primary consideration is the best interests of the child. Often, parents (and sometimes even attorneys) in a divorce become so embroiled in a smear campaign between themselves that they ignore that a court really does not care at all about the parents, but more so for the children who cannot care or fend for themselves. Thus, any legal strategy or position must account for the perspective of the children, not the parents. Additionally, in many close cases where either parent would adequately care for the child, courts will often consider which parent will most respect and not interfere with the other parent's parental rights and relationship with the child in granting the exclusive right to designate the primary residence. Apart from that, courts may consider any common-sense factor when determining conservatorship, possession, or access.
Texas Law provides for the ability to restrict the Exclusive Right to Designate the Primary Residence to within a certain geographic region: for instance, the United States (in cases of parents with foreign family ties), the State of Texas, a region of Texas, a county within Texas, or even a particular school district. The Texas Family Code does not contain any default presumption regarding a geographic restriction, nor a preference of whether one should exist. As a result, anyone who wants a geographic restriction must justify why the court should impose a geographic restriction. The one caveat to remember, though, is that the geographic restriction needs to be in the child's best interest, not the interest of one or both of the parents. Nonetheless, in cases where both parents remain an active part of a child's life, it is not difficult to understand why a court would find that it is in the child's best interests that the child's primary residence be restricted to a certain geographic region: so that the parent who hold the exclusive right to determine that residence does not run off across the county with the child and effectively deprive the child of contact with the non-primary parent.
As a result, Geographic restrictions are common in most carefully drafted orders. Geographic restrictions also are not unyielding. The parties may agree to waive them, and they often are conditioned on the non-primary parent remaining within that region; if the non-primary parent moves away, then there is no reason to force the primary parent to abide by a restriction designed to foster a relationship with the non-primary parent. The primary parent may also later petition the court to lift the restriction if circumstances change: say, if the non-primary parent does not maintain a strong relationship with the child.
Agreed Parenting Plan Is the Best
In close cases, it is always best if the parents can rise above their differences for the benefit of the children and can reach agreed parenting plan containing an agreed "split-possession" arrangement . Doing so avoids the risks of litigating a close case, as well as avoids the inevitable animosity that litigating a close case can produce. In general, an agreement by the parties is almost invariably preferable to a stranger making the decision for you, even if that stranger happens to be an experienced family law judge. Although split-custody might sound untenable in the midst of the emotional turmoil of a divorce, many workable split-schedules do exist, and many children not only benefit from but thrive under the joint care of both parents, even if the parents live in different homes. Sometimes even the parents move in and out of the child's residence so as to minimize the disruption to the children's lives and habits. As with all matters in a divorce, the advisability of a custom-made arrangement depends on the parties involved and should be discussed with your attorney.
Click here for a related discussion of the Standard Possession Order.