When a couple decides to separate, one of the most contentious and emotional issues that comes up involves the care of their children. Because of this, parents and their children need experienced help to negotiate an arrangement that suits the child's needs and wishes, and those of both parents. Divorce can take a significant emotional toll on all involved, and a solid parenting plan can minimize the stress on both the child and the parents.
Since 1995, under §153.131 of the Texas Family Code, unless there is a history of domestic violence, or there is some other good reason why the parents shouldn't be joint managing conservators, the court shall appoint the parents to be joint managing conservators.
A joint managing conservatorship is not the same as "joint custody" or a 50/50 split of time with the children. A joint managing conservatorship simply means that the rights can now be made (1) exclusive to one parent, (2) joint (meaning that both parents need to agree before a particular decision can be made for the child), or (3) independent (meaning that either parent can make a particular decision for the child, without the consent of the other parent).
Unless limited by court order, a parent appointed as sole managing conservator of a child has the rights and duties provided by Subchapter B and the following exclusive rights:
- the right to designate the primary residence of the child;
- the right to consent to medical, dental, and surgical treatment involving invasive procedures, and to consent to psychiatric and psychological treatment;
- 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;
- the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
- the right to consent to marriage and to enlistment in the armed forces of the United States;
- the right to make decisions concerning the child's education;
- the right to the services and earnings of the child; and
- 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.
The right to determine the child's primary residence and the right to receive and disburse child support will almost always be exclusive to one parent. That is the person we refer to as the “primary parent”.
Depending on how the parents can work together, how involved the secondary parent has been in the child's life, a parent's track record on making good decisions for the child, how far apart the parents live, etc., will determine whether or not the rest of the rights and duties will be exclusive, joint or independent. The two most significant are the right to make non-emergency medical, dental and psychological decisions and the right to make educational decisions. Often these are exclusively assigned to one parent, but if they will be assigned to both parents, the court (or the parties, if the divorce is by agreement) have to determine if the rights will be exercised jointly or independently.
Unless limited by court order, a parent appointed as a conservator of a child has the following rights and duties during the period that the parent has possession of the child:
- the duty of care, control, protection, and reasonable discipline of the child;
- the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
- the right to consent for the child to medical and dental care not involving an invasive procedure; and
- the right to direct the moral and religious training of the child.
Elaine Berkeley has over 15 years’ experience dealing with complicated family law issues. If you are in the Woodlands, Conroe or the Houston area and have questions about whether a conservatorship is right for you or a loved one, contact HCWD, PLLC to speak personally with a family law attorney.