Conservatorship in Texas
It is the public policy in the state of Texas to ensure that children will have frequent contact with both parents and to encourage parents to share in the rights and duties associated with raising their children. Tex. Fam. Code §153.001. Pursuant to public policy, Texas has adopted the term “conservatorship” rather than “custody” when making orders concerning the parent-child relationship. If you are involved in – or are going to be involved in – a court case involving children, it is important to understand the meaning of “conservatorship” and your rights as a parent conservator in Texas.
What is a Conservator?
A conservator is a person appointed by the court to care for a child. This person is usually one, or both of the parents, but can be a competent adult, the Department of Family or Protective Services, or a licensed child-placing agency. Tex. Fam. Code §153.005. The primary consideration in making this decision is the best interest of the child. The presumption is to favor one or both parents as conservators. If the court is going to consider a non-parent as a conservator, it must find that appointment of a parent “would significantly impair the child’s physical health or emotional development.” Tex. Fam. Code §153.131. Appellate courts have considered abuse, neglect, abandonment, drug or alcohol use and immoral behavior in determining whether to appoint a non-parent as a conservator. In re S.T., 508 S.W.3d 482, 492 (Tex. App. – Fort Worth 2015, no pet.)(citing In re K.R.B., No. 02-10-00021-CV, 2010 Tex.App. LEXIS 8161, 2010 WL 3928727, at *5(Tex.App. – Fort Worth Oct. 7, 2010, no pet.)).
Types of Conservators
There are three types of conservators in Texas: Joint Managing Conservators, Sole Managing Conservator and Possessory Conservator. The differences between each type of conservator can be minor or significant, depending on your individual circumstances.
Joint Managing Conservator: Texas courts favor appointing both parents as Joint Managing Conservators (JMCs). When the parents are appointed JMCs, each parent has a set list of rights and duties that will be awarded to him or her. Usually, both parents will have the right to consent to a child’s medical or psychiatric care, represent the child in legal actions, make educational decisions, direct the moral and religious training of the child, consent to the child’s enlistment in the armed forces, or to the child’s marriage. Tex. Fam. Code §151.001. Even when both parents are appointed as JMCs, one parent must be designated as the parent who will have the exclusive right to designate the primary residence of the child. Tex. Fam. Code §153.133. Despite the fact that one parent will “have the exclusive right to designate the primary residence of the child,” most court orders will provide that the child’s residence must be within a restricted area – usually the county in which the child currently lives, or counties that border the county in which the child lives. This ensures that the child sees both parents regularly.
When determining which parent will have the exclusive right to determine the primary residence of the child, the primary consideration is, as always, the best interest of the child. The court has broad discretion in determining what it believes is in the child’s best interest. “The law no longer presumes that the mother is the better parent to raise the child.” Dennis v. Smith, 962 S.W.2d 67, 69 (Tex. App. – Houston [1st Dist.] 1997), Tex. Fam. Code §153.003. Instead of basing the decision on gender, the courts look at factors such as parenting skills, training, and nearby family support. Dennis v. Smith at 72. The courts have considered whether the children were provided a stable environment, ready for school every day, and whether the parent plays games and participates in activities with the children. Gardner v. Gardner, 229 S.W.3d 747, 753 (Tex. App. – San Antonio 2007). Courts have favored one parent when the other parent “had persisted and would likely continue to persist in preventing the children from having any chance at a relationship with their father.” Allen v. Allen, 475 S.W.3d 453, 458 (Tex. App. – Houston [14th Dist.] 2015). Lack of cooperation by one parent has also been considered. Chen v. Hernandez, 03-11-00222-CV (Tex. App. – Austin 2012).
The appointment of both parents as Joint Managing Conservators is typically agreed to by the parties, without the need for court intervention. If no agreement is made, the court can issue an order appointing both parents as JMCs if it believes that would be in the best interest of the child. The court will consider whether the child will benefit from having both parents appointed JMCs, the ability of the parents to put the child’s best interest first and reach shared decisions, whether each parent can inspire good relationships between the child and the other parent and whether both parents participated in taking care of the child before they were separated. Tex. Fam. Code §152.134. Both parents must be able to not only parent the child individually, but “to effectively co-parent.” Berwick v. Wagner, 509 S.W.3d 411, 433 (Houston [1st Dist.] 2014). When appointing both parents as JMCs the courts want to make sure that the parents can put aside their differences and seek to parent in a way that “prioritizes the child’s welfare.” Berwick at 433.
Sole Managing Conservator: When the parents cannot agree, or if the court finds that it is not in the best interest of the child to appoint both parents as Joint Managing Conservators, one parent will be appointed the Sole Managing Conservator (SMC). If the court appoints a SMC “that parent is generally given the exclusive decision-making rights” in the areas of education, medical decisions and “other important areas.” Berwick at 433. The SMC will also have the right to designate the primary residence of the child and the right to receive child support from any other conservator. Tex. Fam. Code §153.132.
Possessory Conservator: When one parent is appointed as SMC, the other parent will usually be appointed a Possessory Conservator (PC) if it is in the best interest of the child. The rights and duties of the Possessory Conservator relating to education and medical decisions will be those expressly granted by order of the court and are not statutory. This means it is for the parties to agree, or the courts to decide, which parental rights the PC will be granted. Tex. Fam. Code §153.192. The best interest of the child will be considered when determining which educational and medical rights the PC will be given, if any. However, at all times all parent conservators, including possessory conservators, will have the following statutory rights, unless the court finds good reason exists to limit these rights:
- To receive information concerning the health, welfare and education of the child;
- To confer with the other parent before making a decision concerning the health, welfare and education of the child;
- To access medical records of the child;
- To consult with the child’s doctors;
- To consult with school officials;
- To attend school activities
- To be designated on the child’s records as a person to be contacted in the case of an emergency;
- To consent to medical treatment during an emergency; and
- To manage the estate of a child.
Tex. Fam. Code 153.073.
Each court order involving conservatorship, whether the parents are appointed Joint Managing Conservators or Managing Conservator and Possessory Conservator, will contain three things: 1) the terms of possession and access (“custody”) of each conservator; 2) the rights and duties of each conservator; and 3) payments of child support from one conservator to another. The parties may agree that no child support will be paid by either conservator, however, the court must approve the agreement and find it is in the best interest of the child. A mediated agreement that includes no child support is likely to be approved.
Can the Child Choose?
If a child is 12 years old or older, the court must interview that child if an interview is requested by a party or an attorney appointed to represent the child. The court does not have to, but may interview a child under 12 years old upon request. The interview is conducted to determine the “child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence.” The child’s wishes are not paramount. The court still maintains discretion in deciding what conservatorship arrangement is in the best interest of the child. Tex. Fam. Code §153.009. This section of the Texas Family Code simply allows the court to consider the child’s wishes. A child may not decide where it will live.
There is no requirement for a Judge to interview a child early in the case. Many judges prefer to hear testimony and see evidence before interviewing a child. This helps the Judge understand what to ask about.
Agree to Agree
In all family law matters, but especially in matters where conservatorship is at issue, it is best for the children if the parents agree. When an agreement is reached, the parents maintain control over the final orders and there will not be a need for the court to make a judgement concerning what is in the best interest of your child. The ability of the parents to work together and co-parent is always best for the children. It makes the transition from a two-parent household to a one parent household less stressful for all involved – and it also keeps attorney’s fees down!
Written By: Assoc. Atty. Linzy Ritchie