Texas child custody: managing and possessory conservatorships

All child custody and visitation decisions must be made in light of the child’s best interest.

The number-one concern of a parent facing divorce is normally the welfare of his or her child. A parent may agonize about the impact on the child’s well being because of the end of the marriage.

Seeking the involvement of an attorney can help to ease such concerns. Legal counsel can explain what state law says about custody and visitation in light of the particular family’s situation and help to strategize with the parent about how to proceed to increase the chances of an outcome that would maximize the child’s well being.

For a divorcing Texas parent, understanding state laws of custody and visitation is an important undertaking. The governing Texas statutes are among the most complex and detailed in the nation in this area of law.

Often divorcing spouses can negotiate an agreement governing how the issues in their divorce will be resolved. In Texas, the part of a marital settlement agreement dealing with custody and visitation is called a parenting plan, which details how parental rights and responsibilities will be assigned between them as well as a schedule for sharing possession of and access to the child.

If the judge in the divorce agrees that the terms of the parenting plan are in the best interest of the child, it will be approved. If not, the judge may ask the parties to submit a revised plan or the court could craft an alternate arrangement.

If custody and visitation are determined by the judge, he or she must make every decision in light of the child’s best interest. Texas custody statutes use a unique vocabulary:

• Managing conservator: custodial parent

• Possessory conservator: parent with visitation rights

• Possession or access: period of time when the child is in physical control and care of one of the parents

The judge can appoint either sole or joint managing conservators. To decide if the parents should be appointed jointly, the judge must look at whether it would be in the child’s best interest considering all relevant factors, but specifically:

• Whether the child’s needs and development would benefit from both parents being appointed

• Whether the parents can make decisions together in the child’s best interest and their ability to put the child’s welfare first

• Whether each can facilitate a positive relationship between the other parent and the child

• Whether both previously took part in raising the child

• Locations of the two parental residences

• If the child is 12 or older, his or her preference regarding which parent should designate the child’s primary residence

If the judge does appoint the parents jointly, he or she must designate which parent will have the right to designate the child’s primary residence, as well as the rights and obligations of each concerning physical care of the child and important decision making for the child. If the judge only appoints one parent as a sole managing conservator, that parent will decide the child’s primary residence, be responsible for the child’s care and for decision making. Normally, the other parent would be appointed a possessory conservator with visitation rights.

This is only an introduction to a very complicated area of Texas law. An attorney can answer questions and provide further information.

With several offices throughout Texas, Atty. Morgan Richardson advocates for divorce clients throughout the Lone Star State.