A ubiquitous 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 because, in Texas, there really is no such thing as sole custody.
Often, when someone is seeking “sole custody,” what they are searching for is the right to establish the child's primary residence 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:
A 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 invasive procedures;
- the right to consent to psychiatric and psychological treatment;
- the right to receive and give a 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 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 the child's agent about the child’s estate if the state requires the child’s action, the United States, or a foreign government.
Joint Managing Conservator vs. Sole Managing Conservators
A 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 a conservator's rights.
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 deciding 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 on time 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 the 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 Conservatorship
There is a presumption under the law in Texas that parents should be named as joint managing conservators. To determine the child's appropriate conservatorship, 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 parents' appointment 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 parents will not have any possession period or access.
What are Possession and Access?
Possession and Access refer to who will have the child's physical custody and when visits will occur. The possession plan is usually decided by way of the right to designate the child's primary residence or children. This right is given to either one of the joint managing conservators or the sole managing conservator.
Texas has two statutory possession and access schedules: standard and extended standards. 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 child's best interest.
Texas law expresses a preference for parents to share as equally as practically possible in a child's custody 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 managing conservatorship.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “Child Custody E-Book”
Other Articles you may be interested in:
- 12 Texas Custody & Conservatorship Battle Tips
- Child Custody Basics in Texas
- Do I Have to Pay Child Support if I Have Joint Custody of My Child in Texas?
- Child Custody Basics in Texas
- Are Dads at a Disadvantage when trying to win 50/50 custody in a Texas Divorce?
- Sole Managing Conservator in a Child Custody Case in Texas?
- Help!! My Ex-Spouse Kidnapped my Child
- How Much Will My Texas Child Custody Case Cost?
- When Can a Minor Child Weigh in on Custody Decisions in Texas?”
- Child Custody Geographic Restrictions in Texas
Law Office of Bryan Fagan, PLLC | Houston, Texas Child Custody Lawyers
The Law Office of Bryan Fagan, PLLC, routinely handles matters that affect children and families. If you have questions regarding child custody, it's important to speak with one of our Houston, TX child custody lawyers right away to protect your rights.
Our child custody 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, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles child custody cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County, and Waller County.