Simply put, there is a presumption in Texas family law that it is in your child’s best interest to have a relationship and continued contact with both of their parents. In order to further this goal of our state, family court judges will name you and your ex-spouse as “joint conservators” of your child more often than not. Joint conservatorship refers to a situation when you and your ex-spouse share rights, duties and time in somewhat equal fashion in relation to your child. While you or your ex-spouse will have the ability to determine the primary residence, receive child support and thereby have more possession of your child, the other rights and duties are basically even in many situations.
Again, however, it is the presumption that is in place at the beginning of every child custody case or divorce in Texas that parents should be named as joint managing conservators. In reality this arrangement does not always work best for families and it is sometimes necessary to have one parent be named as the sole managing conservator of a child.
Rebutting the presumption in favor of naming parents as joint managing conservators
You will need to present ample evidence that naming you and your ex-spouse or other parent as joint managing conservators of your child. This much we know. I am going to list the factors that your court is likely to look to in order to determine what is in your child’s best interests.
The most logical way to do this would be to prove past incidents of domestic and/or family violence. Endangering the physical and emotional welfare of your child will likely mean that the other parent is going to be named a possessory conservator with possibly supervised visitation. The reason for this is that a court is prohibited from naming a person with a history of domestic violence as a joint managing conservator of your child. The evidence must not be merely allegations but credible evidence.
As a sole managing conservator, you would have superior rights and duties when it comes to making decisions related to education, medical and psychiatric issues when compared to your ex-spouse. In addition, it is likely that you would be in physical possession of your child more often than you would under a joint managing conservatorship.
How will a court evaluate your petition to be named as sole managing conservator?
First of all, you need to petition (ask) the court in your Original Petition for Divorce or Original Petition in Suit Affecting the Parent Child Relationship (SAPCR) to be named as the sole managing conservator of your child. Without doing so you cannot just magically appear in a trial and ask for it then. Go ahead and make sure you ask for this in your Original Petition that is filed with the Court. If you have already filed and not plead for sole managing conservatorship I would recommend that you file an amended petition in order to meet this requirement.
A court will view your ability to care for your child as being of primary importance. This isn’t just a roof over their head and food in their bellies, either. This means that you will be judged based on your track record and likelihood of being of able to provide for the physical and emotional well bell of your child. Have you ever presented a threat to your child in terms of their physical or emotional well being? If you are not a stabilizing force in your child’s life it is extremely unlikely that you would be named as the sole managing conservator of your child.
Other factors include your ability and willingness to co-parent with your child’s other parent after the divorce or child custody case concludes as well as what your individual parenting skills are. If you have spent most of your child’s life at work this is not a bad thing, or a mark against your “parenting record”. Nobody would begrudge you for supporting your family. However, being away from the house would not assist you in developing and maintaining the sort of parenting skills that are helpful when asking to be named as the sole managing conservator of your child.
Family Relationships are important in a divorce or child custody case
As an extension of a child’s parents, your and your opposing party’s families are also important to consider if you are going to be able to be named as a sole managing conservator of your child. How close do you live to your child’s extended family will play a big role. If you have moved a few hundred miles from your child and now are asking to be named as a sole managing conservator you are going to have an uphill battle to win that designation. Another very critical factor that a court will consider is whether or not you or your child’s other parent will encourage a strong relationship between your child and both of their parents. If it has been shown that you will belittle and take steps to harm your child’s relationship with the other parent then you will likewise struggle to be named as the sole managing conservator of your child.
Abuse and neglect as factors when determining conservatorship
If either you or your child’s other parent has a history of abusing or neglecting either your child or one another, that too will bar the offender from being named as the sole managing conservator of your child. This is especially true if these acts occurred either during the present case or in the immediate period covering two years prior to this case. Family violence is a huge risk for a child in situations like this and if we consider the well being of your child it is difficult to conceive of a situation where a person with that sort of history could be named as a sole managing conservator of the child.
With everything said, what are your chances of being named as the sole managing conservator of your child?
The burden to overcome the presumption that it is in the best interest of your child for you and the other parent to be named joint managing conservators is great. The vast majority of the time parents are named as joint managing conservators. When taking into consideration all of the aforementioned factors, the possible history of family/domestic violence as well as the best interests of the child there just is not a lot of opportunity to be successful in a petition for sole managing conservatorship in most cases.
However, if you are in a position where the other parent in your child’s life has not been a part of their life or has been violent with you or your child you stand a strong chance to be named as a sole managing conservator. Even if you are not successful in being named as a sole managing conservator, you can present a case to be awarded a disproportionate share of possession of your child if the circumstances allow for that to occur. To give yourself an opportunity to do so, it is important that you have experienced and knowledgeable counsel at your side.
Questions about winning sole managing conservatorship? Contact the Law Office of Bryan Fagan
To learn more about our office and to ask one of our licensed family law attorneys any question you may have regarding sole managing conservatorship please contact our office today. Our attorneys represents clients across southeast Texas and would be honored to do the same for you and your family. A consultation with our office is free of charge and can provide you with the answers you need to make a decision about whether or not to begin a family law case.