CUSTODY / CONSERVATORSHIP:
Texas uses the term conservatorship to describe the rights, responsibilities and duties of parents in raising their children. This term also describes what most people think of as “custody.” Conservatorship or custody does not define the amount of time each parent will have with the child. It only addresses the legal rights and duties of the parents. In Texas there are two kinds of conservatorship:
(1) sole managing conservatorship, and
(2) joint managing conservatorship. The presumption is that joint managing conservatorship is in the best interest of the child. However, the court will consider many factors in deciding which type of conservatorship is appropriate. The “best interest of the child” is always the court’s primary concern. The court is not allowed to discriminate
against a parent because of sex or marital status. All factors surrounding the child’s life may be relevant to determine what is in the child’s best interest, including if there has been a history of violence between the parents or violence against the child. If the court finds credible evidence of a history or pattern of family violence, the court
is not allowed to appoint the parent who committed the violence as a joint managing conservator, nor should the court appoint that parent as a sole managing conservator. Evidence of family violence may include testimony by the parent who was the victim, witnesses to the violence, pictures, doctors or hospital records, or counseling records
or the issuance of a protective order against a parent.
Sole Managing Conservatorship
In rare circumstances, one parent may be appointed as the sole managing conservator. When a parent has sole managing conservatorship, that parent has superior rights in raising the child. That parent also has the most responsibility in raising the child. As a sole managing conservator (often referred to as SMC,) that parent has the right to establish where the child will live, the right to consent to any medical treatments, the right to receive child support payments, the right to represent the child in any legal action, the rights to consent to marriage or enlistment in the armed forces, the right to make education decisions, the rights to any earnings by the child, and the right to apply for a passport for the child.
Examples of some reasons why the court might appoint a sole managing conservator:
• there is a history of family violence, neglect or abuse by the other
parent that might endanger the child;
• there is a history of drugs, alcohol or other criminal activity by the
other parent that might endanger the child;
• the other parent has been absent from the child’s life;
• there is a history of extreme conflict between the parents over
educational, medical or religious values;
• a parent does not wish to be appointed as a joint managing
conservator
Joint Managing Conservatorship
When a parent is appointed as a joint managing
conservator (referred to as JMC), the parents will often share the above parental rights duties and powers. However, even in a JMC situation, the court must designate
one parent who will be responsible for establishing the location of the child’s primary residence and designate the geographic location within which the child’s residence
must be located. This parent is called the primary joint managing conservator, also referred to as the “custodial parent.” The other parent is called the “possessory conservator,”
because that parent has the right to possession of the child at certain times, and is commonly referred to as the “non-custodial parent.” Aside from the decision regarding
the location of the child’s primary residence, most other major parenting decisions are shared between the primary and possessory joint managing conservators. The presumption
under the law is that joint managing conservatorship is in the best interest of the child.
Possessory Conservatorship
The court will normally appoint the parent who is
not the sole managing conservator as a possessory conservator. In rare circumstances,the court may find that it would not be in the best interest of the child to appoint the
other parent as a possessory conservator. Usually this is only done in cases where the child may be in danger of physical or severe emotional abuse. A parent appointed as a possessory conservator (PC) has the same rights and duties that any parent has to their child. The parent has the duty to support the child
even if there is no formal child support order signed by the court.
The possessory conservator has the right to receive information from the other parent about the child’s health, education and welfare, the right to talk to the other parent (if possible) before decisions are made about the child’s health, education and
welfare, the right to have access to the child’s records, to talk to the child’s doctors, the right to talk to the school about the child and attend school activities, the right to be designated on the child’s records as an emergency contact person, the right to consent
to medical treatment during an emergency, and the right to manage the estate of the child.
Can a Non-Parent or Grandparent ask for Conservatorship?
In limited circumstances,
a person other than the parent can be granted conservatorship.
Nonparent – A person, other than a foster parent, who has had actual care,control, and possession of the child for at least six months has standing to ask for custody if the six-month time period has not ended more than 90 days prior to filing the suit.
Foster Parent – A foster parent can file for custody if the child has been in that person’s home for at least 12 months, ending not more than 90 days preceding the date the suit is filed.
Grandparent – A grandparent may file for custody if there is satisfactory proof to the court that the child’s present living environment presents a serious question concerning the child’s physical health or welfare; or both parents, the surviving parent, or the managing conservator either filed the petition or has consented
to it.
How do I get custody?
When a parent wants to establish conservatorship the parent
has the right to file a lawsuit called a Suit Affecting the Parent Child Relationship or a Suit to Establish the Parent Child Relationship. The lawsuit will ask the court to decide issues of parentage, conservatorship, visitation and child support. The parent who
wants to pay child support or a parent who wants the other parent to pay child support may hire a private attorney or go to the office of the Attorney General (AG or child support office) and establish a child support order. This type of order may also be handled
inside a suit for divorce. During the course of the suit, issues regarding parentage may be raised. If one of the parties claims the father is not the biological father, genetic testing may be ordered. The person asking for the paternity test normally pays for his/her costs for the testing, plus the costs for testing the child. The court will determine
who will pay the fees for the other parent’s test. Genetic testing normally determines if the man will be considered the legal father of the child. However, certain exceptions apply if the child already has a presumed father under the law.
Filing for custody through the Texas Attorney General’s Office.
A suit for child support may be filed with the Texas Attorney General’s office. The Attorney General represents the state’s interest for parents to collect child support. The Attorney General therefore represents the state, not either of the parents. Pursuant to a request by one of the parents, or the state if a parent is receiving state benefits, such as welfare or Medicaid, the Attorney General may file a lawsuit to establish a child support order. Once ordered, the child support will be deducted from the paycheck of the parent who is ordered to pay. When establishing the child support order, the Attorney General typically also addresses the issues of conservatorship and visitation. Often the parents are appointed as joint managing conservators and the parent ordered to pay child support is awarded visitation pursuant to the standard possession schedule. If the parents disagree
as to conservatorship or visitation, then the parties should consider hiring private attorneys to ensure their concerns are properly brought to the attention of the court. The AG will not typically assist parents with these matters since they represent the
State, not the parents.
Filing for custody when the parents are married to each other:
When the child’s parents are married to each other, and no prior court orders exist, each parent has equal rights to the child. This means that if one parent wants to move out and take the child, that parent has the right to do so. The police will not get involved without a court order. This remains the case until a court order establishes the rights and duties of each parent, determines which parent the child will primarily reside with, and when each parent shall have possession of the child. This can be done through a divorce action or through a separate suit affecting the parent child relationship (such as a Texas
Attorney General’s case).
Filing for custody when the parents are not married to each other but had a child together:
When two people are not married to one another and have a child
together, the father must legally prove he is the father in order to have parental rights under Texas law. The father’s legal rights may also be established by the mother filing a suit to establish parentage and requesting child support. One way to establish parental rights is for the father and the mother to sign an acknowledgement of paternity and file it with the paternity registry in the Bureau of Vital Statistics in Austin, Texas. The father is required to register before the birth of the
child or not later than 31 days after the child is born. If the father fails to register with the paternity registry, he may be prevented from asserting any legal rights as a father to the child in the future.
The father may also file a separate lawsuit to establish that he is the father to the child. The court may require the father to have genetic testing done to prove he is the biological father. Instead of genetic testing, the court may accept an acknowledgement of paternity signed by the father and mother agreeing that the man is the father of the child. In either case, the father is then legally found to be the father of the child and a parent under Texas law. This gives the father certain legal rights and duties to the child, including the right to ask the court for custody.
Filing for custody when the parents are not married to each other, have a child together, and the mother is married to someone else.
When the mother is married to someone else the man the woman is married to is presumed to be the father to the child. This means that the husband has all the rights and duties to the child and
the man who thinks he is the father has none. The man who believes he is the father to the child still has the duty to register with the paternity registry. If the child has been raised by the husband, up until the time the child is four years old the man who
believes he is the father may also file a separate lawsuit objecting that the husband is the father to the child. The court will order genetic testing to prove which man is the father to the child. If the man who believes he is the father is proven to be the father,
he will have the rights and duties of a parent under Texas law and will have the same right to ask for custody as the mother. If the mother and husband are still married to one another but are in the process of divorce, the mother must notify the court of the
possibility that there is another man who could be the father so that person can be notified. The husband also has the right to be tested to show he is not the father to the
child. If it is proven that the husband is not the father to the child, and the court finds it is in the best interest of the child, then the husband will not be required to pay child support and the husband will not have any legal rights or visitation with the child.
Other potential issues in a custody suit.
When the decision of where the child will
primarily live is disputed, investigators may be appointed by the court to assist the court in reaching a decision. The court also may impose certain limitations or requirements on the parents to protect the best interest of the children.
Social Studies.
The social study is a court ordered investigation of the circumstances
and home life of the parents and the child. It is usually conducted by a social worker, who will visit the home of each parent and interview the child, the parents, and other persons involved in the child’s life. When the investigation is finished, the social worker will write a recommendation to the court as to what would be in the best
interest of the child, including where the child should primarily live and/or what type of visitation schedule would be best. Normally the parties are ordered to each pay for half the cost of the social study.
Psychological or Psychiatric Evaluations.
A psychological or psychiatric evaluation
is a court ordered evaluation of a person or child involved in the lawsuit. The evaluation is conducted by a licensed psychologist or psychiatrist who will provide a written report to the court. The judge will determine if one or both parties will be responsible for payment of the evaluation.
Amicus Attorney
An Amicus Attorney is an attorney appointed by the court to
represent the best interest of the child. The attorney will meet with the child and each parent, and will investigate the concerns and facts of the case. The Amicus Attorney may call witnesses, ask questions and make an argument to the court the same as any other attorney in the case. The court will determine if one or both parties will be responsible for payment of the Amicus Attorney’s fees.
Attorney Ad Litem.
An Attorney Ad Litem is an attorney appointed by the court
to represent the wishes of the child. Because the child is his client, he must adhere to the rules of confidentiality and undivided loyalty to the child. The attorney ad litem
argues on the child’s behalf. The Attorney Ad Litem may call witnesses, ask questions and make an argument to the court the same as any other attorney in the case. The court will determine if one or both parties will be responsible for payment of the Attorney Ad Litem’s fees.
Guardian Ad Litem.
A Guardian Ad Litem is a person appointed by the court
to represent the best interests of a child. The guardian ad litem is usually a volunteer trained to be a Court Appointed Special Advocate (CASA) and is normally not an
attorney.
Drug Testing.
If allegations arise concerning a parent using illegal drugs, the
court may order one or both parents to submit to immediate or random drug testing. The judge will determine if one or both parents will be responsible for payment of the testing. The judge may also impose an order prohibiting one or both parents from using illegal drugs or alcohol while the child is in his or her possession.
Prohibition on overnight visitors.
Sometimes the court will prohibit one or both parents from having unrelated overnight visitors of the opposite sex (or the same
sex if a parent is homosexual) while the child is in his or her possession. This order may be on a temporary or ongoing basis. The purpose for this order is to maintain stability for the child.
Child’s Preference.
When a child is age 12 or over, he or she may sign a statement
choosing the parent with whom the child primarily wants to live. This statement is filed with the court and is considered persuasive evidence to the judge. However, the child’s choice is subject to the approval of the court, and the court will make the final ruling as to where the best place will be for the child to live.
Geographic (Domicile) Restriction.
If the parents are named Joint Managing
Conservators, the court is required to establish a geographic area for the child’s primary residence. The court may order the child to maintain primary residence within that county, or that county and its surrounding counties for as long as the possessory parent
resides in that county or a contiguous county. The courts favor this type of domicile restriction, and it is commonly ordered because it is normally in the best interest of the child to live close to both parents. If the custodial parent moves far away, it creates
a hardship for the other parent to exercise his/her visitation. The court wants the child to have the opportunity to maintain close and meaningful relationships with both of his/her parents. If the primary parent does not want a domicile restriction on the children, that parent will have to show the court a compelling reason why a move away from the other parent would be in the best interest of the child.