A very common question that clients ask when beginning the process of a
divorce or a child custody suit is: “Can I receive sole custody
of my child?” However, this can be a difficult question to answer
because in Texas there really is no such thing as sole custody. Often,
when someone is seeking “sole custody” what they are in search
of is the right to establish the primary residence of the child, and the
right to receive child support.
What is Sole Custody?
In Texas, the term “custody” isn’t used by the courts
or legal system. In Texas, custody is called “conservatorship.”
There are two types of conservators:
- managing and
Managing conservators are further subdivided into two categories:
sole managing conservator is a person that is granted exclusive rights to make decisions for the
child. If a parent is named
sole managing conservator under Texas Family Code Section 153.074 the parent will have the following
rights and duties exclusively (unless limited by the court):
- the right to designate the primary residence of the child;
- the right to consent to medical, dental, and surgical treatment involving
- the right to consent to psychiatric and psychological treatment;
- 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;
- the right to the services and earnings of the child; and
- 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 agent of
the child in relation to the child’s estate if the child’s
action is required by the state, the United States, or a foreign government.
Joint Managing Conservator vs. Sole Managing Conservators
Joint Managing Conservator is one of two people who share the rights and duties of a parent. With
Joint Managing Conservators, each parent is parceled out the above list of rights and duties that they
share in regards to the child or children either:
- exclusively, or
In contrast, when one parent is named
Sole Managing Conservator, this means you are the only parent with the legal right to make certain
decisions concerning your child. If you are granted to be the
Sole Managing Conservator you are the only parent who has the rights of a conservator.
In most family cases a parent of a child whether sole, joint, or a possessory
conservator, has the following rights and duties at all times:
- the right to receive information from any other conservator of the children
concerning the health, education, and welfare of the children;
- the right to confer with the other parent to the extent possible before
making a decision concerning the health, education, and welfare of the children;
- the right of access to medical, dental, psychological, and educational
records of the children;
- the right to consult with a physician, dentist, or psychologist of the children;
- the right to consult with school officials concerning the children's
welfare and educational status, including school activities;
- the right to attend school activities;
- the right to be designated on the children'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 children; and
- the right to manage the estates of the children to the extent the estates
have been created by the parent or the parent's family.
- the duty to inform the other conservator of the children in a timely manner
of significant information concerning the health, education, and welfare
of the children; and
- the duty to inform the other conservator of the children 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.
The Other Parent Still Gets Visitation
When one parent is designated as Sole Managing Conservator, the other parent
will be designated as Possessory Conservator. Possessory Conservator designates the parent who has a right to “possess”
the child or children through an ordered visitation schedule.
Overcoming the Presumption of Joint Managing Concervatorship
In Texas, there is a presumption under the law that parents should be named
as joint managing conservators. To determine the appropriate
conservatorship of the child, the court will use the "best interests of the child"
standard. When determining if parents should be appointed Joint or Sole
conservators, the "best interests of the child" standard considers
many factors, including whether:
- The child’s desires
- The emotional and physical needs of the child, now and in the future
- Danger to the child, now and in the future
- The parental abilities of both parents
- Stability of the home environment
- The plans each parent has for the child
- Whether there is evidence of domestic violence
- Whether either parent has filed a false report of child abuse
If there has been domestic violence, then it becomes easier to rebut the
joint managing conservator presumption. The Texas Family Code prohibits
the appointment of parents as joint managing conservators if credible
evidence of domestic violence is presented.
Credible evidence of domestic violence is evidence that a parent has a
history of past or present:
- child neglect or
- a history of abuse that was directed to the other parent, a spouse or the child.
However, either the appointment of a parent as a
joint managing conservator, a
sole managing conservator or a possessory conservator does not mean that parent will not have any
possession period or access.
What is Possession and Access?
Possession and Access refers to who will have the physical custody of the
child, and when visits will occur. The possession plan is usually decided
by way of the right to designate the primary residence of the child or
children. This right is given to either one of the joint managing conservators
or the sole managing conservator.
Texas has two statutorypossession and access schedules: standard and extended standard. These schedules dictate the time each
parent spends with the child. However, the parties can agree on different
possession and access schedules based on their needs or the court can
order a different possession and access schedule based on the best interest
of the child. Texas law expresses a preference for parents to share as
equally as practically possible in the custody of a child in a divorce
case. In Texas, the courts favor granting both parents access to the child
absent parental misconduct, such as neglect, domestic violence or abuse.
Whether you are joint managing conservators, or sole managing conservatorship
and possessory conservator, each party can still be granted rights of
visitation and access. In fact, the possession order in a sole/possessory
conservatorship can be the same visitation order put in place in a joint
If you want to know more about what you can do,
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Other Articles you may be interested on regarding Custody
- Child Custody Basics in Texas
- When Can a Minor Child Weigh in on Custody Decisions in Texas?
- Texas Child Custody Modifications
- Amicus Attorneys in Child Custody Disputes in Texas?
- Sole Managing Conservator in a Child Custody Case in Texas?
- Teens with Children, Child Custody and Child Support in Texas
- Child Custody and Divorce in Spring, TX
Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children
and families. If you have questions regarding
divorce, it's important to speak with one of our
Houston, TX Divorce Lawyers right away to protect your rights.
divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and
developing a strategy to meet those goals.
Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online
form. The Law Office of Bryan Fagan handles
Divorce cases in Houston, Texas, Cypress, Klein,
The Woodlands, the FM 1960 area, or surrounding areas, including
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