“I want sole custody of my children.” This is something we often hear from parents who are going through a divorce with children, or parents that are going through a Suit Affecting the Parent-Child Relationship (SAPCR). But, what does this really mean?
In Texas, we do not have “custody.” When people say “custody,” they are really referring to two distinctive ideas related to child issues. The first is conservatorship. The second is possession and access.
- Conservatorship
Conservatorship is decision-making ability. Basically, conservatorship is the right to be a parent and make decisions for your child. The court appoints parents (or people acting as parents) as “conservators” of children. In Texas, it is presumed that parents will be appointed joint managing conservators. Texas’ view is that if a child has two parents who are willing to be involved, then both parents should have some amount of decision-making authority for their children. As a result, “sole custody” is not really possible to have in Texas. However, it is possible that one parent will be appointed as sole managing conservator, and the other parent will be appointed as a possessory conservator. But, sole managing conservatorship is still not “sole custody.” No matter what appointment the court makes, it must be in the best interest of the child.
- Joint Managing Conservatorship
Commonly, both parents are appointed as joint managing conservators. Some rights are awarded automatically when a parent is appointed as a conservator, including but not limited to, the right to access medical, dental, psychological, and educational records, the right to consult with the child’s doctors, dentists, and psychologists, and the right to attend school activities (like lunch, performances, and field trips).
The court must specify which parent has the right to make other decisions including rights on “meds, heads, and eds.” “Meds” is the right to consent to non-emergent medical, dental, and surgical treatment involving invasive procedures. “Heads” is the right to consent to psychiatric and psychological treatment. “Eds” is the right to make decisions regarding the child’s education. The court will decide if these rights should be joint, exclusive, or independent. When rights are joint, both conservators must agree on the decision. If they cannot agree, then a tie-breaker will be needed. For example, if the conservators cannot agree on whether the child should be in the gifted and talented program at school, then someone like the child’s teacher or principal will break the tie and make the decision. When rights are exclusive, one conservator has the right to make the decision on their own. When rights are independent, each conservator is allowed to make their own decision, notwithstanding the other conservator’s decision.
When people say “sole custody,” the most important right that they actually want (without realizing it) is the exclusive right to designate the primary residence of the child. This means that one parent, on their own, gets to decide where the child will live. The parent with this right is referred to as the “primary parent” — this makes the other parent the “non-primary parent.” The non-primary parent also pays child support and receives a possession schedule. It is important to remember that even when one parent is the primary parent and the other parent is the non-primary parent, both parents are still joint managing conservators.
- Sole Managing Conservatorship
In some instances, it is not appropriate for both parents to be appointed joint managing conservators. In such an instance, the court will appoint one parent as the sole managing conservator and the other as the possessory conservator. It is important to remember that even though the word “sole” appears here, sole managing conservatorship is not sole custody.
As stated above, any person that a court appoints as a conservator receives some automatic rights, including but not limited to, the right to access medical, dental, psychological, and educational records, the right to consult with the child’s doctors, dentists, and psychologists, and the right to attend school activities (like lunch, performances, and field trips). So, both the sole managing conservator and the possessory conservator have these rights. But the sole managing conservator has the exclusive right to designate the primary residence of the child. They also have exclusive decision-making authority on “meds, heads, and eds” as well as other important rights. This means that the possessory conservator cannot make these decisions. The sole managing conservator has the exclusive right to receive child support from the possessory conservator. This is what makes joint managing conservatorship and sole managing conservatorship different.
- Possession and Access
Possession and access describes the physical possession of the child. The court will make a possession order which is a set schedule that describes when each conservator will have possession of the child, on what day, on which overnights, when and where drop-offs/exchanges are, etc. The court must find that the possession order is in the best interest of the child. The Texas Family Code lays out a Standard Possession Order. The conservators are welcome to come to an agreement and make their own custom possession order; otherwise, the court will award the Standard Possession Order. The Texas Family Code tells us that it is presumed that the Standard Possession Order is in the best interest of the child and should guide the court in determining how much possession and access time to award to a possessory conservator or a joint managing conservator. This means that even if you are the primary parent as a joint managing conservator, then your co-parent still has the right to possession of your child at the designated times laid out in the possession order. Further, it means that even if you are named the sole managing conservator and have all the decision-making power, your co-parent still has the right to some designated possession of or access to your child. This is why there is not “sole custody” in Texas.
Contrary to popular belief, sole custody is not really a concept in Texas. As a reminder, the presumption in Texas is that both parents should be appointed as joint managing conservators who share some decision-making rights and possession of the child. If such an arrangement is not appropriate, then one parent might be named sole managing conservator with exclusive decision-making powers, and the other parent would be named the possessory conservator. In such an instance, the possessory conservator will still have opportunities for possession and access. As such, it is not usually possible to cut your co-parent out completely when there has not been a termination of their parental rights.
To learn more about conservatorship and possession and access in Texas, consult with one of our Hunt Law Firm attorneys at any of our convenient locations, by phone, or via Zoom. You can contact us through our site or by phone at 832-781-0320 today.