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:
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 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
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 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 statutory possession 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 managing conservatorship.
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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, PLLC | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan, PLLC 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.
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