Who can get conservatorship (custody)?
It is the public policy of Texas that a child have frequent and continuing contact with his/her parents and have the parents share the rights and responsibilities of raising their child as long as it is in the best interest of the child.* The law favors granting parents sole or joint managing conservatorship but evidence of family abuse is taken into serious consideration when determining the best interest of a child.** (See Can a parent who committed violence get “custody” (conservatorship) or “visitation” (access)?) Alternatively, a competent adult, a licensed child-placing agency, or the Department of Family and Protective Services can be appointed sole or joint managing conservator of a child.***
A child’s relative might be granted managing or possessory conservatorship. See I am a child’s relative. Can I get managing or possessory conservatorship? for more information.
Note: In determining custody, there should be no discrimination based on sex or marital status.****
* Tex. Fam. Code § 153.001
** Tex. Fam. Code § 153.131
*** Tex. Fam. Code §§ 153.005, 153.371- 153.372
**** Tex. Fam. Code. § 153.003
I am the child’s relative. Can I get managing or possessory conservatorship (custody)?
A child’s great-grandparent, grandparent, uncle or aunt can file for managing conservatorship if there is “satisfactory” proof that:
- it is necessary because the child’s present situation is mentally or physically harmful for the child; or
- both parents, or the surviving parent, or the managing conservator either filed the petition or consented to the suit.*
In addition, any person regardless if they are related to the child or not, can file for managing conservatorship if:
- s/he has had actual care, control, and possession of the child for at least 6 months ending not more than 90 days before filing; or
- the child, child’s guardian, managing conservator, or parent has lived with the person for at least 6 months ending not more than 90 days before filing and the child’s guardian, managing conservator or parent is dead when the person files.**
A grandparent or someone who has had significant past contact with the child cannot file a petition for possessory conservatorship unless there is already an open case involving conservatorship of the child. If there is an open case, the judge can allow the grandparent or other person to ask for possessory conservatorship if the judge finds it is in the best interest of the child. ***
* Tex. Fam. Code § 102.004
** Tex. Fam. Code § 102.003
*** Tex. Fam. Code § 102.004(b)
I am the child’s grandparent. Can I get possession of or access to the child (visitation)?
A grandparent can request possession of or access to his/her grandchild. Much of the judge's decision will be based on various factors relating to the grandparent's child (the parent of the grandchild in question). The judge should give the grandparent visitation if:
- the grandparent's child's (in other words, the parent's) parental rights have not been terminated; and
- the grandparent proves to the judge that denying visitation would significantly harm the grandchild's physical or emotional well-being; and
- the grandparent's child (in other words, the parent):
- has been incarcerated for at least 3 months leading up to the grandparent's visitation request; or
- has been found by the court to be incompetent; or
- is dead; or
- does not have possession of or access to the child.*
A grandparent cannot request possession of or access to a grandchild if the grandchild has been or is in the process of being adopted (by a person other than the child's stepparent) and both of the child's biological parents:
- are dead;
- had their parental rights terminated; or
- signed an "affidavit of waiver of interest in child" or an "affidavit of relinquishment of parental rights," which designated the Department of Family and Protective Services, a licensed child-placing agency, or a person other than the child's stepparent as the managing conservator of the child.**
* Tex. Fam. Code § 153.433
** Tex. Fam. Code § 153.434
I am the child's sibling. Can I get access to the child (visitation)?
A sibling who is at least 18 years old can file a petition for access to a minor child. However, if the siblings are separated due to an action by the Department of Family and Protective Services, the sibling who is seeking access does not have to be 18 years old; s/he can file at any age. The judge will grant the sibling’s request if it is in the best interest of the child.*
* Tex. Fam. Code §§ 102.0045; 153.551
What are the rights and responsibilities of a person, other than the parent, who is made a conservator?
If a nonparent, licensed child-placing agency or the Department of Family and Protective Services* is appointed conservator, they are given a number of rights and responsibilities, including:
- the right to have physical possession and to direct the moral and religious training of the child;
- the responsibility of care, control, protection, and reasonable discipline of the child;
- the responsibility to provide the child with clothing, food, shelter, education, and medical, psychological, and dental care;
- the right to consent for the child to medical, psychiatric, psychological, dental, and surgical treatment and to have access to the child's medical records; and
- the right to designate the primary residence of the child and to make decisions about the child's education.**
* See Tex. Fam. Code § 102.003(7),(6)
** Tex. Fam. Code § 153.371