What is conservatorship (custody)? What types are there?
In Texas, custody is called “conservatorship.” Conservatorship is used to describe the legal rights and responsibilities of a parent. A judge may give conservatorship to one or both parents. A judge can grant:
Generally, conservatorship (custody) includes the right to:
- get information from the other parent of the child about the health, education, and welfare of the child;
- have access to medical, dental, psychological, and educational records of the child;
- talk to a physician, dentist, or psychologist about the child;
- talk to school officials concerning the child's welfare and educational status, including school activities; and
- consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child.**
* Tex. Fam. Code §153.005(a)
** Tex. Fam. Code § 153.073(a)
What is sole managing conservatorship (SMC)?
Sole managing conservatorship (SMC) means you are the only parent with the legal right to make certain decisions concerning your child. If you are granted SMC, you have the general rights given to a conservator and you are the only parent who has rights such as:
- decide the primary (main) residence of the child;
- consent to medical, dental, and surgical treatment involving invasive procedures;
- consent to psychiatric and psychological treatment;
- receive child support; and
- make decisions concerning the child's education.*
There are several reasons why a judge might grant one parent sole managing conservatorship:
- The other parent has a history of family violence, neglect.
- The other parent has a history of drugs, alcohol or other criminal activity.
- The other parent has been absent from the child’s life.
- There is a history of extreme conflict between the parents over educational, medical and religious values.
- One parent does not want joint managing conservatorship.**
* Tex. Fam. Code § 153.132
** The Texas Young Lawyer’s Association, What to Expect in Texas Family Law Court (2010)
What is joint managing conservatorship (JMC)?
Joint managing conservatorship (JMC) is when the rights and duties of a parent are shared by both parties. However, exclusive right to make certain decisions (like where the child lives) may be awarded to one party.*
JMC can be established either by an agreement from the parents or a court order. If the parents come to an agreement about sharing managing conservatorship, the agreement must be approved by a judge.*1
When making a decision about JMC, the judge will consider what is in the best interest of the child, which includes:
- whether the physical, psychological, or emotional needs and development of the child will benefit from joint managing conservators;
- the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest;
- whether each parent can encourage and accept a positive relationship between the child and the other parent;
- whether both parents participated in child upbringing before the filing of the suit;
- the geographical closeness of the parents' residences;
- if the child is 12 years of age or older, the child's preference, if any, regarding the person to have the exclusive right to decide where the child will live; and
- any other relevant factor.*2
If both parents are made conservators, the judge will specify the responsibilities each parent has separately and jointly.*3
Even if the judge grants joint managing conservatorship, s/he may still make one parent the primary joint managing conservator, also known as the “custodial parent” and the other parent would be the possessory joint managing conservator. The custodial parent has the right to determine the primary (main) residence of the child. All other decisions are made by both parents.*4
Note: When a judge makes both parents joint managing conservators it does not mean that each parent will necessarily get equal or nearly equal possession of and access to the child.*5
* Tex. Fam. Code § 101.016
*1 Tex. Fam. Code § 153.133
*2 Tex. Fam. Code § 153.134(a)
*3 Tex. Fam. Code § 153.071
*4 The Texas Young Lawyer’s Association, What to Expect in Texas Family Law Court (2010)
*5 Tex. Fam. Code § 153.135
What is a possessory conservator?
The possessory conservator has the same rights and responsibilities as any other parent except s/he does not decide the primary (main) home of the child. The judge can limit these rights at his/her discretion.* One parent is usually made possessory conservator when the other parent is made the sole managing conservator.**
However, a judge will not make a parent possessory conservator if it is not in the best interest of the child and might harm the physical and emotional well-being of the child.**
To read about the rights and responsibilities of a possessory conservator see What is conservatorship (custody)? What types are there? and What is possession of and access to a child (visitation)?
* Tex. Fam. Code § 153.192
** Tex. Fam. Code § 153.191
How is paternity (legal fatherhood) established?
There are several ways to establish paternity (legal fatherhood) in Texas. Paternity is presumed (assumed) when a man is:
- married to the mother of the child and the child is born during the marriage or born before the 301st day after the date the marriage ended (Note: 301 days accounts for the length of a typical pregnancy);
- married (but not a valid marriage) to the mother of the child before the birth of the child and the child is born during the invalid marriage or before the 301st day after the marriage ended;
- married to the mother of the child after the birth of the child and voluntarily acknowledged paternity, and:
- the acknowledgment is in a record filed with the bureau of vital statistics;
- he voluntarily named himself the child’s father on the child’s birth certificate; or
- he promised in a record to support the child as his own; or
- lived with the child in the same household for the first two years of the child’s life and he presented himself as the father to other people.*
If the parents are not married, they can sign an acknowledgment of paternity (AOP) if both parents agree to this.** There is no filing fee to file the AOP.*** You can get an AOP form at a hospital, the local registrar, the Child Support Office or at the Vital Statistics Unit. For more information, see the website of the Texas Attorney General. Note: Signing an AOP generally means that the father has full rights and responsibilities as a parent, equal to the mother's, unless a court order limits his rights.
Another way to establish paternity is when a parent files a paternity proceeding in court and the judge orders a genetic test to prove legal fatherhood.****
* Tex. Fam. Code § 160.204(a)
** Tex. Fam. Code § 160.301
*** Tex. Fam. Code § 160.306
**** Tex. Fam. Code § 160.502