Parents in Texas often talk about custody and visitation, but the Texas Family Code uses different words. It speaks of conservatorship, which concerns the rights and duties of making decisions for a child, and of possession and access, which concern the time a child spends with each parent. Knowing that vocabulary makes court papers, and conversations with a lawyer, much easier to follow.
Every conservatorship decision starts from one rule. Section 153.002 of the Texas Family Code says the best interest of the child shall always be the primary consideration of the court in determining conservatorship and possession of and access to the child. Section 153.001 adds the state's public policy: to assure that children have frequent and continuing contact with parents who have shown the ability to act in the child's interest, to provide a safe, stable and nonviolent environment, and to encourage parents to share in the rights and duties of raising their child after they separate or divorce.
Under Section 153.005, a court may appoint a sole managing conservator or joint managing conservators, and if the parents are or will be separated, it must appoint at least one managing conservator. With some exceptions, Section 153.131 provides that a parent shall be appointed sole managing conservator, or both parents joint managing conservators, unless the court finds that would significantly impair the child's physical health or emotional development. It is also a rebuttable presumption that appointing both parents as joint managing conservators serves the child, although a finding of a history of family violence involving the parents removes that presumption.
Joint managing conservatorship does not automatically mean equal time. Section 153.134 requires a court appointing joint managing conservators to designate the conservator who has the exclusive right to determine the child's primary residence, and either to set a geographic area for that residence or to specify that there is no geographic restriction. That is why relocation questions often turn on the exact wording of an existing order. When the parents have not filed a written agreed parenting plan, the court may appoint them joint managing conservators only if the appointment is in the child's best interest, and the factors it weighs include the child's needs, each parent's ability to put the child's welfare first and reach shared decisions, each parent's support for the child's relationship with the other, whether both took part in child rearing before the suit, how close the parents live to each other, and, for a child 12 or older, the child's preference about who designates the primary residence.
A sole managing conservator holds a set of exclusive rights unless a court order limits them. Section 153.132 lists them, including the right to designate the child's primary residence, to consent to medical, dental and surgical treatment involving invasive procedures, to make decisions about the child's education, and to receive and give receipt for child support payments.
Under Section 153.191, a parent who is not appointed a sole or joint managing conservator shall be appointed a possessory conservator, unless the court finds that appointment is not in the child's interest and that parental possession or access would endanger the child's physical or emotional welfare.
Time with the child is often set by the standard possession order. Section 153.252 creates a rebuttable presumption that the standard possession order provides reasonable minimum possession for a parent named as a possessory conservator or joint managing conservator, and Section 153.251 notes that it is designed for a child three years of age or older. For parents who live 100 miles or less apart, Section 153.312 gives the possessory conservator weekends beginning at 6 p.m. on the first, third and fifth Friday of each month and ending at 6 p.m. the following Sunday, plus Thursday evenings from 6 p.m. to 8 p.m. during the regular school term, along with defined holiday and summer periods. The statute allows some variations, and parents may agree to a different schedule.
Parents do not have to accept a schedule designed by the court. Section 153.007 allows them to enter a written agreed parenting plan, including variations from the standard possession order, and if the court finds the plan is in the child's best interest, it shall render an order in accordance with it. Under Section 153.009, in a nonjury trial or hearing and on the application of a party, the court shall interview in chambers a child 12 years of age or older to determine the child's wishes about conservatorship or about who will have the exclusive right to determine the primary residence. The interview does not diminish the court's discretion.
Parents sometimes assume that a parent who falls behind on child support loses visitation. The Family Code keeps the two apart. Section 153.001 provides that a court may not render an order that conditions a conservator's right to possession of or access to a child on the payment of child support.
Orders can be modified. Section 156.101 allows a court to modify an order about conservatorship or possession if the modification would be in the child's best interest and, among other grounds, the circumstances of the child, a conservator or another affected party have changed materially and substantially since the order was rendered, or since an underlying mediated or collaborative settlement was signed. The Bowen Law Firm, PLLC, a family law firm in Houston, lists conservatorship, possession schedules, relocation and modifications among its child custody work, and a lawyer can review how an existing order applies to a particular family.
This article is general information, not legal advice. Every family's situation is different; for advice about yours, speak with a licensed Texas attorney.