One of the most challenging aspects of a Texas family law case is being able to understand the terminology associated with your case. This isn't a situation where you can get by not understanding all the different words and phrases used in the case. These are words and phrases that will impact your life and that of your child in the immediate future. Therefore, it is a good idea for you to understand what these words and phrases are so that you can make better-informed decisions for yourself and your family.
Fortunately, the Law Office of Bryan Fagan is here to help walk you through these issues so that you can be better equipped for success in your child custody or divorce case. We look forward to being able to help the people in our community take control of their family law cases and be as prepared as possible. We like to say that you can wander into a family law case, but it is tough to wander out of one while also achieving goals that you set for yourself. Most of the time when you are unprepared you can't even set goals for yourself. It would be a shame for you to go through a divorce or child custody case and not achieve something for yourself and your family.
That is where the Law Office of Bryan Fagan comes into play. We want to be able to help you manage your case and also to achieve great results. Nobody wants to go through a divorce or child custody case. However, if you find yourself in a position where you need to go through one you may as well do something positive for yourself and your children in the process. At the same time, you can work through these issues so that you do not have to come back for a second or third case sometime in the future.
In today's blog post from the Law Office of Bryan Fagan, we are going to discuss how to better understand the types of conservatorship arrangements in Texas. We will begin by discussing what conservatorship means, what it all encompasses, how the different arrangements can impact your life, and what a court looks to when deciding these issues. In the meantime, if you have questions about what you have read in today's blog post please do not hesitate to reach out to our office by phone or through our website to set up a free-of-charge consultation with one of our licensed and helpful family law attorneys.
What does conservatorship mean?
Conservatorship refers to rights and duties that one person holds concerning another person. As a parent, you are the conservator of your children. You have the right to make decisions for them in all areas of their life. In addition, you have certain duties to care for your children such as when it comes to providing them with a place to live, clothes, food, and an education. Conservatorship issues are critical in a divorce or child custody case. Every aspect of your child's life is tied up into conservatorship.
In Texas, we use the term custody more than we do conservatorship. Conservatorship is a legal term that is referred to in court orders. Custody is a general term that more people are familiar with and use. Even judges and attorneys tend to use custody more often than we do conservatorship. However, when it comes to conservatorship and custody, we can go through these issues in tandem. Custody won’t be a word that we use much more in today’s blog post but just know that it is tied into conservatorship.
Let’s walk through some of the different elements of conservatorship that you will encounter in your child custody or divorce case. I think the most notable part about conservatorship for children relates to topics like visitation and possession. These are the parts of a case that tie together the time that you and your co-parent can spend with your child. For parents going through a divorce case, these are the issues that are most likely to get your attention. You will want to be able to spend as much time with your children as possible and the visitation and possession aspects of conservatorship will help you determine what the situation is going to look like in this regard.
Next, we have child support. Parents must support their children and child support is an effort to allow for parents to continue in that responsibility. One parent will pay the other parent child support during and after a family law case. Typically, the parent with whom the child does not reside primarily will pay child support. This is because this parent will be spending less time with the children.
How are conservatorship roles defined?
In a child custody situation, you and your co-parent will likely be named as either joint managing conservators of your child or with one of you named as the sole managing conservator with the other named as possessory conservator. While both scenarios result in you being a conservator of your child, how those rights and duties are divided can be quite different. Understanding those differences will help you to determine how to negotiate on these subjects. The better informed you are, the more confident you should be when it comes to negotiating with your co-parent on these topics.
In a Texas family law case, it is presumed that a joint managing conservatorship is in the best interests of your child. This is the default setting that a court will approach your case from. This also means that you are likely to be named as joint managing conservator of your children with all other factors being equal. However, even if you are named as a joint managing conservator of your child that does not mean that you are going to share rights, duties, and time with your child equally with your co-parent across the board. Rather, even in a joint managing conservatorship, there are differences as to how these elements of parenting are divided.
The two most crucial differences between parents in a joint managing conservatorship relate to which parent will be named as the primary conservator and which parent must pay child support. In most child custody scenarios one parent will be the primary conservator and the other parent will have the duty to pay child support. How this designation is decided will depend upon several factors including which parent has been the primary caretaker of your children to this point in their lives.
Child support can be a sticky subject for many parents going through a child custody case. There is something that does not sit well with many parents when it comes to paying money that they earn to their ex-spouse or co-parent. Even knowing that this money is ostensibly supposed to help your child does not always offset the ill will that goes with making these payments. In general, when we talk about child support these are amounts that are determined based on the net monthly income of the paying parent.
Even in a joint managing conservatorship, no rule says parents need to split time, rights, and duties with one another on an exact even basis. Rather, there are going to be different parenting roles that both you and your co-parent take on concerning your child. One of you will be the primary conservator of your child. This means that the primary conservator will be able to have the child live with him throughout the school year. The non-primary or noncustodial parent will have weekend visitation and shared holidays. While this is far from no time with the children it is also not a situation where it is an exact 50/50 split of time.
Additionally, parents who are in a joint managing conservatorship do share rights and duties with a child, but those rights and duties are usually not exactly even. For instance, one parent may have the exclusive right to make a certain type of decision for a child for any number of reasons. There may be other rights that are shared where both you and your co-parent have to agree on an issue for any action to be taken. Finally, there are going to be rights that are held independently from the other parent. This could be something like the independent ability to consent to emergency medical treatment. This way you would not have to call your co-parent on the phone to get their permission to allow for your child to have emergency surgery after injuring themselves, for example.
Keep in mind that a joint managing conservatorship is intended to promote the best interests of your child first and foremost. What the state of Texas wants to see is a situation where both you and your co-parent can have a meaningful and long-lasting relationship with your child. This means that both of you should be able to spend time with your child but also weigh in on the important issues regarding his life. A joint managing conservatorship is presumed to be appropriate in all family law cases. However, if there is additional information that is in play, the presumption in favor of a joint managing conservatorship can be rebutted. We will go into that more in detail now.
Sole managing conservatorship
A sole managing conservatorship is not the most likely outcome of your family law case, but it is possible that a court would rule that one is in the best interests of your children. By the same token, you and your co-parent may negotiate through this issue and come to the shared conclusion that a sole managing conservatorship is best for your child and best for your situation. Let’s walk through what a sole managing conservatorship is and how it differs from a joint managing conservatorship.
When a parent is the sole managing conservator of a child this means that the parent is in the driver's seat (so to speak) regarding the rights, duties, and care associated with that child. It does not mean that the other parent has no say in the child's life but at the same time it does mean that the balance of power is not as even as it would be under a joint managing conservatorship. Since we just finished mentioning how the law presumes that a joint managing conservatorship is in the best interests of a child, you may be wondering how a court could then conclude that a sole managing conservatorship is more appropriate.
In many cases, a court could rule that a sole managing conservatorship is a better fit for your child if you or your co-parent have a history of abusing substances or violence in the family. In either of these two situations, the court would be concerned with the safety and well-being of your child. Because one of you has a history of family violence and/or substance abuse that would draw into question your ability to make decisions for your child and yourself. In that case, the parent with the dangerous past may only be named as a possessory conservator while the other parent is named as the sole managing conservator.
If you are named as the possessory conservator of your child, this means that you will have limited access and visitation rights to your child. You may have supervised visitation with your children where you must go to a facility or location where your visitation periods can take place. You would likely have just a couple of hours per session to spend time with your children. On top of that, your visitation sessions would be supervised by another person. This other person could be a family friend, extended family member, supervised visitation facility employee, or even your co-parent. All of this would be done to promote the health and safety of your child. Or you may be able to have short periods of visitation with your child which are not supervised. These visitation periods could occur at your home but, again, likely would not be extended periods.
Your ability to make decisions about your child would likely be minimal, as well. For a parent like you to be able to make decisions on behalf of a child you would need to be able to show good judgment. A substance abuser or a person who has an addiction problem is not someone who has displayed an ability to make good decisions for themselves. As a result, you probably would not be able to make decisions about your child’s schooling, religious practices, or medical care. Your co-parent may need to consult with you on jointly held rights and duties (if any), but that would be the exception rather than the rule.
What factors does a court consider when making a best-interest determination?
The emotional and physical development of your child is important to a court. These are two of the primary factors that a court would consider when looking into the best interests of your child. We know that stability and consistency are two of the keys when evaluating how well a child can adapt to their new life after a divorce or child custody case. Therefore, a court would look to whatever situation is most suited to promoting these two qualities. If both you and your co-parent are equally situated as far as consistency and stability of the home environment is concerned then you would seem to be ideal candidates to be named as joint managing conservators.
Another consideration for you to think about is the desires or wants of your child as far as who he wants to live with primarily. In Texas, a child over the age of 12 can talk to a judge about their preference in who will become their primary conservator. If your child is over the age of 12 all you need to do is file a motion with the court to have your child speak to the judge about their preference in this regard. The judge has no choice but to allow your child to voice their opinion. On the other hand, if your child is younger than 12 the same motion may be filed but it is up to the court as to whether to allow the child to speak to their preference.
There are many moving pieces involved in a child custody and conservatorship case. With so much involved and so much at stake it pays to have an experienced family law attorney to help guide you. The attorneys with the Law Office of Bryan Fagan appreciate you spending time with us today and we hope to hear from you with any questions you may have about this blog post.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your family may be impacted by the filing of a divorce or child custody case.