Family Law

When you think of custody law, you think “custody” and “visitation.” Unfortunately, the Texas Family Code has much more complicated legal system and verbiage when it comes to custody. In fact, even the verbiage in Texas in regards to custody and visitation is downright confusing.

Texas does not formally use the terms “custody” and “visitation.” Instead, Texas Courts make decisions on Conservatorship. Directly tied to these decisions are the Rights and Duties for the child. Then, there is the Possession Order, which controls actual time spent with the child.

A person who has been awarded Conservatorship is called a Conservator. Conservators can be designated a Joint Managing Conservator, a Sole Managing Conservator, or, a Possessory Conservator.

Conservators have the right to make legal decisions for the child, but also have legal duties to the child. Now, this is very important, because these rights essentially define who– in layman’s terms – becomes the custodian, and who becomes the visiting parent.

RIGHTS AND DUTIES OF CONSERVATORS AT ALL TIMES

Unless limited by the Court for good reason or agreed to by the parties, any Conservator automatically has the following rights at any time under Texas Family Code § 153.073:

(1)  to receive information from any other conservator of the child concerning the health, education, and welfare of the child;

(2)  to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;

(3)  of access to medical, dental, psychological, and educational records of the child;

(4)  to consult with a physician, dentist, or psychologist of the child;

(5)  to consult with school officials concerning the child’s welfare and educational status, including school activities;

(6)  to attend school activities, including school lunches, performances, and field trips;

(7)  to be designated on the child’s records as a person to be notified in case of an emergency;

(8)  to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and

(9)  to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.

RIGHTS AND DUTIES OF CONSERVATORS DURING POSSESSION

Here is where it gets complicated. Conservators who have Possession and Access, by default have the following rights under Texas Family Code § 153.073, unless the Judge decides otherwise or the parties agree otherwise:

(1)  the duty of care, control, protection, and reasonable discipline of the child;

(2)  the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;

(3)  the right to consent for the child to medical and dental care not involving an invasive procedure; and

(4)  the right to direct the moral and religious training of the child.

TYPES OF CONSERVATORS

Managing conservators come in three versions: Joint Managing Conservator, Possessory Conservator, and Sole Managing Conservator.

JOINT MANAGING CONSERVATORS (JMCs)

If parents are appointed joint managing conservators, then one party is typically appointed “Primary” JMC, and that is the parent who has the right to designate the child’s residence. For all intents and purposes, that would be called the “custodian parent.” The other “Non-Primary” JMC does not have the right to designate where the child lives. In plain language, the Non-Primary KJMC would then be the “visiting parent.”

The Primary JMC has the right to receive child support from the Non-Primary JMC.

SOLE MANAGING CONSERVATOR and POSSESSORY CONSERVATOR

A Sole Managing Conservator by default have the following rights under Texas Family Code § 153.132, unless the Judge decides otherwise or the parties agree otherwise:

(1)  the right to designate the primary residence of the child;

(2)  the right to consent to medical, dental, and surgical treatment involving invasive procedures;

(3)  the right to consent to psychiatric and psychological treatment;

(4)  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;

(5)  the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;

(6)  the right to consent to marriage and to enlistment in the armed forces of the United States;

(7)  the right to make decisions concerning the child’s education;

(8)  the right to the services and earnings of the child;

(9)  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 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; and

(10)  the right to: (A)  apply for a passport for the child;  (B)  renew the child’s passport; and (C)  maintain possession of the child’s passport.

As such, an SMC is the custodian, and has an overwhelming superiority by default in making decisions for the child, as opposed to a Primary JMC. This is because even if the Primary JMC has the right to designate the primary residence for the child, they still share a lot of the decision rights for the child with the Non-Primary JMC.

The SMC receives child support from the PC.

Finally, a PC is simply a party who has been designated as having rights to Possession and Access (i.e. visitation) of a child. If one parent is named SMC, the other is typically named a PC. Typically, the Possessory Conservator’s rights and duties are more limited then that of the other “visiting” parent – the Non-Primary JMC.

The PC pays child support to the SMC.

TYPICAL CONSERVATOR DECISIONS

Typically, parents are either awarded or agree to a Joint Managing Conservatorship. There is a presumption under Texas law that a Joint Managing Conservatorship is best for a child. A Sole Managing/Possessory Conservatorship decision is normally reserved if there is evidence of abuse or neglect, or if a parent is a danger to the child.

INDEPENDENT v. JOINT v. EXCLUSIVE DECISIONS

In yet another nuance, once the Conservatorship is appointed, the numerous rights and duties described above (as well as a number of rights and duties not listed in this article such as attending the child’s school activities, representing the child in court, and numerous other decisions) can be “tweaked” further. Each right or duty can either be decided or acted upon (1) by each parent independently; (2) by the joint agreement of the parents; or, (3) exclusively by one parent.

In an SMC/PC situation, the default and typical arrangement is for SMC is to have exclusive rights make majority of these decisions (as opposed to the PC who may have some joint or independent rights, but almost never exclusive). Meanwhile, in a Joint Managing Conservatorship, the rights are often joint. Aside from the exclusive right to designate the primary residence of the child (which makes them the “custodian”), the Primary JMC often have the Non-Primary JMC share in the rights and duties independently or by joint agreement.

In yet another nuance, it is an accepted standard in Texas with JMCs is to have joint rights on decisions involving non-emergency medical care, as well as psychological care, and educational decisions. Lawyers and Judges typically call these the “Meds, Heads, and Eds.” Meanwhile, the rest is decided on an independent or exclusive basis – either as the parents agree, or, as the Court decides. A big trend is also to sometimes have a “tie-breaker” authority figure such as the child’s primary care physician for a medical decision, or, a school counselor for education decision, if the JMCs are deadlocked on a joint decision.

While no doubt confusing, this Conservatorship system is actually also brilliant, in that it allows a high degree to personalization.

POSSESSION ORDER

As if things could not get any more confusing, remember that we have only discussed rights and duties of the parents, but we have not yet touched base on the actual possession schedule for the child. This is what a Possession Order is.

A Possession Order is actually made up of two parts – Possession and Access. Possession of a child means the parent has the child in their possession, i.e. visitation. Access means is the interaction with a child by phone, text messages or facetime in addition to Possession.

There are two types of orders – the Standard Possession Order and the Modified Possession Order.

STANDARD POSSESSION ORDER

Texas law presumes that the Standard Possession Order (“SPO”) is in the best interest of a child age 3 or older.

Under the SPO, the Non-Primary JMC or PC (i.e. “visiting parent”) has the right to possession of the child on the first, third, and fifth weekends of every month, one day a week in the evenings during the school year, alternating holidays, and an extended period of time (30 days) during summer vacation.

When the parents live more than 100 miles apart, the weekend schedule may be the same or reduced to one weekend per month, there is no one day a week visit, alternating holidays, and visiting has the child every spring break, and, for forty-two days during summer vacation.

When all the time is calculated, assuming that the visiting parent makes full use of their rights of possession under the SPO, the child ends up spending about 45% of his or her time with the visiting parent in a year under a Standard Possession Order.

MODIFIED POSSESSION ORDER

A Modified Possession Order (“MPO”) is anything different than an SPO. Texas Courts have a strong inclination to order an SPO unless overwhelming evidence says otherwise. However, should the parents themselves agree on an MPO, the Court would normally sign off on it.

An MPO can be anything, really. Some MPOs include alternating weeks which comes close to a fifty-fifty split, a 2-2-3 schedule where a child lives with one parent for two days of the week, spends the next two days with the other parent, and then returns to the first parent for three. These are just often-adapted versions of MPOs, but the parents are free to negotiate something that works for them and the child and present it to the Judge for signature.

ACCESS

Again, Access means is the interaction with a child by phone, text messages or facetime in addition to Possession.

Access is not given much due in the Texas Family Code, and many parties simply forget to include access in their Possession Order because it is not automatically included otherwise. This can have serious consequences down the road, because without specific Access verbiage in Possession Order, a parent does not have to allow the other to communicate with the child. For example, imagine Dad forbidding Mom from calling or facetiming with their son while he is in Dad’s possession for an extended summer vacation.