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What is Custody in Texas? "Custody" as it is often referred to by law people (and by lawyers as a generic term) in Texas is really comprised of several categories of "conservatorship." There are three basic types of conservatorship with several sub-categories provided for within each. These categories are actually names or labels for a particular set of rights and obligations imposed on an adult -- normally the parent of a child -- towards a child and imposed by a court order or divorce decree. The basic starting point for understanding conservatorship starts with the categories "sole managing conservatorship" and "sole possessory conservatorship." They are basically the sides to a single coin and it is rare, if ever, you will find one without the other in the context of a typical divorce. Although they are far more rare since the advent of "joint managing conservatorship," both still exist not only in existing decrees and orders, but also in new orders and decrees. Sole Managing Conservatorship: Sole managing conservatorship (a/k/a SMC) is seen historically (and often wrongly) as the type of conservatorship a mother would be awarded towards her child. Included within this category is the right to "manage" the child's affairs. This includes selecting the child's school, religious upbringing and moral training, medical care provider, school the child attends, and where the child resides to name but several. It is viewed as having ultimate, and often unbridled, control over the affairs of a child. Sole Possessory Conservatorship: The counterpart to sole managing conservator is sole possessory conservatorship (a/k/a SPC). This conservator is seen historically (and often wrongly) as the type of conservatorship which would be awarded to a "weekend father." This conservator has minimal control over the child, but for when the child is actually in that person's temporary possession. Normally this person's control over the child's affairs is secondary to the rights of the sole managing conservator. The primary right this person is to enjoy visitation (i.e. possession) of the child at expressly designated and enumerated points in time. Joint Managing Conservatorship: In response to the countless often unnecessary fights over the title of "sole managing conservator," a new pedigree of conservatorship was created by the legislature. This is "joint managing conservatorship." This joint relationship (a/k/a JMC) is an attempt to establish a fairer and more equal means of parents sharing in and participating in their child's life. This has been generally accepted in Texas, and, in fact, is presumed to be in the best interest of the child. However, while parents share the title of managing conservatorship, the decree or the order from the court actually designates and enumerates the respective and relative rights of the joint managing conservators. While the title or label implies equal rights and obligations are shared by the parents, the decree actually spells out what rights and obligations each has. The rights which may be shared or awarded jointly, or to only one of the parties in a joint managing conservatorship arrangement include the right to make decisions concerning the child's education, the child's moral upbringing (i.e. religious training), the child's medical care provider, the child's psychological and emotional health care provider if needed (and the right to make such a decision to seek such care), to name but only several of these rights. The primary focus of litigation in conservatorship cases is not the award of the name of "managing conservatorship," since it is now presumed to be in the best interests of the child, but is the award of the rights conferred by the court. Most important of these rights is the right to establish the domicile and residence of the child. This is, in essence, the right to determine where the child physically lives. This is also known as "primary possession." Often this right is limited by the imposition of a geographic area in which the person may select where the child is to live. This can be limited to a county (and often to counties contiguous to a single county), or even an area as small as a school district. Geographic Limitations on Establishing the Child's Residence: The geographic limitation on either a SMC's or a JMC's right to establish the physical domicile and residence of the child limits the conservators right to simply uproot the child and move away from the other parent. Often language is employed that provides if the conservator who does not have the right to establish the child's domicile and residence moves away from the child, the geographic limitation is lifted or automatically modified. How is Conservatorship Awarded? Often, although the parties are divorcing, they are able to enter into an agreement as to conservatorship. This agreement, which must be written and approved by the court in the decree of divorce (or in a subsequent order modifying the terms contained in the decree), may be made by the parties with their attorneys help or through the process of mediation. It is vital, however, for each party to understand what the exact terms of the agreement are to avoid being bound by an agreement approved by the court. It is the policy of the courts in Texas to have every case mediated -- unless some compelling reason exists not to -- before a contested final hearing is set in the case. In the event the parties can not agree -- and often people can not agree until later in the process -- the court may order a wide range of things to be done to determine which parent is best able to provide a stable and safe, nurturing environment for the child to be raised. The court may order a "social study" to be done. This is sometimes referred to as a "home study" although technically the two are somewhat different. Normally the court will appoint someone who is qualified to interview the parents, as well as visit each parent's home to see the parent's commitment to raising the child, as well as the parent's physical and emotional ability to raise the child. This person (often a social worker) may, depending on the order of the court, as well as the age of the child, interview the child as to his or her life so as to better a better insight into the situation. The court may also order the parents to attend divorce counseling or other classes which focus on the impact of the divorce on the child. The counseling or classes are not intended to force a reconciliation, however, sometimes this is the result. The court is more interested in helping the child survive the emotional upheaval of the divorce than in the adult relationship of the parents. The court may also order psychological testing and interviewing done of the parents by either a psychologist or a psychiatrist. This is done in select cases because of the expense to the parties. The court may also order the psychologist or psychiatrist to prepare a social study profile as well. Whatever the court orders, a report is normally prepared and presented to the court and the attorneys. This report normally will contain a recommendation made by the social worker, psychologist or psychiatrist as to what is in the child's best interest. This report is normally reviewed by the court and, while not controlling, is persuasive. Each attorney will be allowed to challenge the report's conclusions. Attorneys often retain their own experts (psychologists, psychiatrists, etc.) to rebut the methodology, conclusions or recommendations made. What Legal Standard Does the Court Use? The court normally employs the "best interest" test. This is a discretionary decision entrusted to the judge to decide what is in the child's "best interest." This is the overall standard which serves as the backdrop for most custody decisions. Depending on the type of conservatorship sought by each party, the court has various other evidentiary standards to employ. These are fairly technical and best discussed with your attorney. These other tests routinely come into play when a modification of an existing order is sought. The court does not only view what is in the child's best "material" interests, but also intangible benefits to the child such as moral upbringing, the parent's commitment to educating the child, and the parent's commitment to foster a good relationship between the child and the other parent. This latter includes encouraging visitation, and speaking well of the other parent in the presence of the child. Will the Child Be Asked Where They Want to Live? The law allows a child over the age of 12 years to make a written declaration as to whom should be appointed conservator. This, in effect, is the child's input into the court's decision. The child's input, however, is subject to approval by the court and is not determinative. Many courts are very hesitant to rely on a child's election unless corroborating facts exist to show such is in the child's best interest. Sometimes a parent can coach a child into a decision, or the child is forced into making such an election. Some courts will listen to a child while other are extremely hesitant to do so if the child is less than 12. While the law does make provision for such, the harm can often outweigh the benefit in involving the child in a process which the child is not mature enough to understand. Parents are encouraged by the courts to not involve their child in the problems shared by the adults. The trauma caused to the child can be lifelong. Most courts view any conduct by either parent which does not foster a good relationship with the other parent as a reason to award the innocent parent conservatorship with greater rights. How is Visitation Awarded? Visitation is established by the decree of divorce or an order from the court. The basic starting point for visitation is the "Standard Possession Order." This is enacted by the legislature and provides specific periods of visitation which are presumed to be in the best interests of the child and the child's relationship with the parents. The courts may deviate from the standard order either by the agreement of the parties, or by fashioning a specific visitation order which best fits the court's view of the situation. Such modifications may include observance of religious holidays and other recognized traditions. May Grandparent's Seek Visitation? Texas law allows grandparents limited visitation rights depending on the unique circumstances of each case. The current status of these statutes is open to debate based on appellate court challenges and judicial decisions on the rights of grandparents. Grandparents may, however, under the right set of circumstances, actually be awarded conservatorship of the child apart from any claim for visitation. What if I Suspect Abuse of the Child? Texas law takes the sexual or physical abuse of any child as a serious matter requiring immediate attention. If credible evidence exists, or even a reasonable suspicion based on facts, it is a crime not to report the alleged abuse to either a local law enforcement agency or Child Protective Services (CPS). Your report will be kept confidential in almost all circumstances. If such is occurring, the court can and normally will enter emergency orders (sometimes even in the absence of a hearing prior to entering the orders) protecting the child and blocking access and possession by the offending party to the child. Unfortunately, in some custody litigation, a parent will make a false claim of child abuse. In the event it is shown such claim was not only false -- for people can misperceive facts and misunderstand situations -- but made by a parent with knowledge such claim was false, the court will harshly deal with that parent. It is a crime in Texas to make a false report, and the court is authorized to seriously punish the offender, not only by denying the offending party managing conservatorship, but by sanctioning the offending party. -- The Law Offices of Steven E. Rogers |