Conservatorship, oftentimes referred to as custody, defines a party’s relationship to a child and assigns certain rights and duties to that party. A parent’s conservatorship of their child is one of three important areas in family law in terms of children. The other two areas involve a person’s possession and access with a child, often referred to as visitation, and child support. This blog will explain what custody of a child means under Texas law.
Are There Different Types of Conservators?
In general, all parents are conservators of their children, but not all conservators are the same. A parent’s rights to make decisions regarding their children varies based on the type of conservatorship they have. A parent can be appointed either Joint Managing Conservator, Sole Managing Conservator, or Possessory Conservator.
If a parent is appointed a Joint Managing Conservator, the other parent will also be appointed a Joint Managing Conservator. Joint Managing Conservatorship is the legal term for what most people call “joint custody.” Otherwise, one parent will be appointed a Sole Managing Conservator, and the other parent will be a Possessory Conservator. In most cases, parents are appointed Joint Managing Conservators because that is presumed to be in the best interests of the children under Texas law.
Joint Managing Conservator v. Possessory Conservator v. Sole Managing Conservator
When parents are appointed Joint Managing Conservators this means that the parents will largely get to participate equally in the decision-making process regarding their child.
A Sole Managing Conservator, on the other hand, has the exclusive right to make most decisions concerning the child. This means that the Possessory Conservator can possibly visit with the child, but not make the important decisions outlined in the Texas Family Code. Texas courts favor having both parents be actively involved in children’s lives. For this reason, most parents are appointed Joint Managing Conservators instead of Sole Managing Conservator or Possessory Conservator.
What Rights Do Conservators Have?
Rights Conservators Have at All Times
All conservators have certain rights at all times regardless of whether they are a Joint Managing Conservator, Sole Managing Conservator or Possessory Conservator. These rights include the right to:
- Receive information from the other conservator regarding the child’s health, education and welfare;
- Confer with the other parent to the extent possible before making decisions concerning the child’s health, education, and welfare;
- Access the child’s dental, medical, psychological, and educational records;
- Consult with the child’s physician, dentist, or psychologist;
- Consult with school officials regarding the child’s welfare and educational status, including school activities;
- Attend school activities, including but not limited to school lunches, performances, and field trips;
- Be designated on the child’s records as a person to be notified in case of an emergency;
- Consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to a child’s health and safety; and
- Manage the child’s estate if the parent’s family created the estate or if the parent created the estate using their separate property.
Rights Conservators Have During Periods of Possession
All conservators, regardless of the type of conservatorship, have the right to consent to medical and dental care for their child that do not involve invasive procedures while the child is in their possession. For example, a conservator can elect to take the child to an eye exam during their periods of possession. Furthermore, parents have the right to direct the child’s moral and religious training while the child is in their possession. Therefore, a conservator can choose whether to take their child to church, temple, or mosque. The other parent cannot stop the conservator from taking the child to church, for example, during the conservator’s periods of possession.
Other Rights
While the two prior sections discussed rights conservators automatically receive, this section will focus on rights that either the parties or the court must allocate. Oftentimes, the rights apportioned for Joint Managing Conservators include language that a party has the right, subject to the agreement of the other party, to make decisions about the child. Typically, tie breaker language will also be included in the event that parents cannot come to an agreement. We will discuss more about what these decisions include below.
Primary: The first right is the right to designate the primary residence of the child. Only one conservator can have the right to designate the primary residence of the child. Oftentimes, whoever has this right is subject to a geographic restriction. A geographic restriction means that the conservator cannot designate the primary residence of the child outside a certain area. Of course, the conservators could agree that neither parent has the right to designate the primary residence of the child, but before deciding this, the pros and cons should be discussed with an attorney.
Heads, Meds, and Eds: The conservators oftentimes fight over a group of rights called “heads, meds, and eds.” The second right a conservator can have is the right to consent to medical, dental, and surgical treatment involving invasive procedures. This right is generally referred to as “meds”. Examples of this right include whether a child receives a vaccine or even if the child gets braces. The third right is oftentimes referred to as “heads”, which is the right to consent to psychiatric and psychological treatment, such as therapy or psychiatric medication. Finally, “eds” refers to the fourth right a conservator can have, which is the right to make decisions concerning the child’s education. Decisions concerning the child’s education include whether the child takes gifted and talented courses or advanced placement classes.
These rights are typically accompanied by tie breaker language. For the meds and heads rights, the child’s physician is normally named as the person who makes the decision if the conservators cannot agree. The child’s school counselor generally makes the decision if the parents cannot agree regarding the child’s education.
Child Support: Other rights that must be apportioned include the right to receive and give receipt for periodic payments for child support and to hold or disburse these funds for the benefit of the child. This is an exclusive right that can only be given to one conservator.
Legal Action: The sixth right is the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child. This right would come up in situations such as if the child is injured in an accident and the parents want to sue to get damages.
Marriage and Enlistment: The seventh right is the right to consent to marriage and to enlistment in the armed forces of the United States. Many states require that a person be 18 years old before they can get married. However, some states still allow children to get married with parental consent. This right would give parties the ability to consent to such marriages. Similarly, children can enlist in the armed forces before they turn 18, but this also requires parental consent.
Services and Earnings: The eighth right is the right to the services and earnings of the child. This means that if the child has a job, the parent will have a right to the child’s earnings. Oftentimes, parents can help their child set up bank accounts, for example, to help them manage any earnings the child receives.
Agent of the Child: The nineth right does not come up as an issue often, but it is the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government. This right would apply in situations when the parent needs to file taxes on behalf of the child if the child has income.
Passport: Finally, the tenth right is the right to apply for a passport for the child, renew the child’s passport, and maintain possession of the child’s passport. This right can be separated. For example, both conservators can have the joint right to apply for the child’s passport or renew the child’s passport, but only one conservator can be given the exclusive right to maintain possession of the child’s passport.
How Can I Get Conservatorship of my Child?
Only a court order establishes conservatorship of a child in Texas. The most common court orders establishing conservatorship include a Final Decree of Divorce or a Final Order in Suit Affecting the Parent-Child Relationship. A child’s parents would establish conservatorship in a Final Decree of Divorce if, as the name suggests, the parents are going through a divorce. Otherwise, parents can file a Suit Affecting the Parent-Child Relationship, commonly called a SAPCR, to establish conservatorship.
Does a Judge Decide Conservatorship?
Parties can determine conservatorship if they can reach an agreement. Oftentimes, parties attend mediation prior to Temporary Orders or a Final Order. At mediation, the parties and their attorneys will discuss the issues in the case, including conservatorship. Parents most often agree to be appointed Joint Managing Conservators. Parents typically agree to be appointed Joint Managing Conservators in mediation because that is what a judge would likely order barring any unforeseen factors, such as family violence, abuse, neglect, excessive alcohol use or drug addiction.
If the parties cannot come to an agreement, then a judge would likely decide conservatorship. Parties can request a trial by a jury, but jury trials are very rare in family law given the expense. The judge would then hear the facts each side presents in support of their position regarding conservatorship. The judge would then render whether the parties would be appointed Joint Managing Conservators, Sole Managing Conservators, or Possessory Conservators along with the specific rights each party would have in relation to the children.
Conservatorship is an important part of orders dealing with child custody. Make sure you bring up your questions or concerns regarding conservatorship when you meet with your attorney. Your attorney will be able to guide you on how to navigate discussion with the opposing party in terms of conservatorship or what to request if you go before the court based on the specific facts of your case.