What is conservatorship under Texas Law?
In Texas, “conservatorship” is one part of “child custody.” Conservatorship is all about the rights and duties you receive as a parent, or other person named as a conservator, as they relate to child-rearing decisions. Many consider the most important of these rights to be the exclusive right to determine the primary domicile of the children. Other significant rights to be made on behalf of the children include the right to make educational decisions; the right to make non-emergent medical decisions; the right to make psychiatric decisions; and the right to make psychological decisions. While there are other rights and duties awarded to conservators, they don’t see to arise as often as those above.
Conservatorship is determined by court order. The type of conservatorship granted defines the scope of the conservator’s rights and responsibilities.
Types of conservatorships under Texas Family Law
Texas law recognizes three types of conservatorships:
There are certain rights that a parent conservator always, whether they are in possession of the children or not. Unless a court order states otherwise, pursuant to Texas Family Code § 153.073, the parent conservator’s rights include:
- Decision making – The right to either make decisions or to confer about decisions related to the child’s health, welfare, and education, including the right to consent to emergency medical or dental treatment when the child’s health is in immediate danger. This includes the right to confer with the other parent as well as a doctor, dentist or psychologist of the child.
- Information – The right to remain informed about the child’s health, education, and welfare. This includes the right to receive information from another parent or conservator, to talk to the child’s school, and from medical, dental, and mental health providers about the child.
- Access to Records – The right to the medical, dental, psychological, and educational records of the child.
- School – The right to attend school activities, including school lunches, performances and field trips, and to be listed as an emergency contact for the child.
Sole Managing Conservatorship
When appointed a sole managing conservator, that conservator has the exclusive right to make most decisions. In addition to the rights listed in the statute, the sole managing conservator also has the right to:
- Decide the child’s primary residence
- Receive child support
- Represent the child in legal action and make other legal decisions on his or her behalf
- Act as the child’s agent regarding his or her estate unless a guardian has been appointed to act on behalf of the estate
- Obtain or manage the child’s passport
- Consent to the child’s marriage and enlistment in armed forces
Under a sole managing conservatorship, these additional rights are reserved for the sole managing conservator and not the possessory conservator/other parent. The arrangement is only appropriate when the court believes having only one parent make critical decisions serves the best interest of the child. Often, it is granted to one parent when the other has:
- committed domestic violence.
- committed child neglect or abuse.
- active and severe alcohol or drug abuse.
- been out of the child’s life for a significant period.
Joint Managing Conservatorship
In Texas, there is a presumption that parents of a child should be named joint managing conservators (JMC). In a joint managing conservatorship (JMC), the parenting rights and duties are shared to some degree and may be awarded in various ways.
- Independent – this means each conservator has the independent right to make such decision without regard to the other conservator’s position on the issue
- By agreement – meaning the parties have to agree on the action to be taken. No agreement, no action.
- After notice to the other party – meaning that you have to provide notice, whether oral or written that you plan to take a certain action on behalf of the child
- After conferring with the other party – meaning that you must at least discuss the intended action with the other party prior to embarking on the course of action.
The parties can agree to a JMC, or a court can order it. Even when the parents agree, the judge must still approve the arrangement. The judge will consider whether the JMC serves the best interest of the child and even if the parents generally share the parenting duties, specific details may be apportioned according to the best interest of the child.
A possessory conservator has the same rights of a conservator under § 153.073, but not the additional rights of a sole managing conservator or joint managing conservator.
Most commonly, when a judge appoints one parent as the sole managing conservator, the other parent will be made a possessory conservator. An exception is when the court determines that it is not in the best interest of the child for the possessory conservator to have rights beyond that of paying child support or other financial support. Such a decision is only made in extreme cases where there is a huge concern that the behavior of that parent may harm the child’s physical or emotional well-being. When a parent is not named a conservator of the child, that is but one small step away from having one’s parental rights terminated.
How Texas Family Court Judges Decide Conservatorship
When parties are unable to agree on conservatorship and other attempts at resolution have failed, the parties will go to trial on the issue of conservatorship. Under Texas law, a judge must apply the “best interest of the child” standard by examining several factors such as:
- The child’s physical and emotional needs
- The parent’s stability and ability to prioritize the child’s welfare
- Each parent’s ability to share decision-making that is in the child’s best interest
- Each parent’s involvement with the child before the conservatorship case was filed
- The ability of each parent to foster a positive relationship between the child and the other parent
- Family support, including the proximity of parents’ residences
- In the case of older children, the child’s preferences may be considered by the court
- Danger to the child, such as a parent’s history of addiction or abuse
Who is eligible for conservatorship?
Often, custody disputes arise between parents but other relatives or another adult or protective service agency may also be appointed as a conservator. Other eligible individuals can include grandparents, foster parents, prospective adoptive parents, or another relative. There are a number of hoops to jump through for a non-parent to be named a conservator in Texas. So, if you believe you have a situation that may qualify you for conservatorship of a child that is not biologically yours, it is imperative to reach out to a family law specialist to learn about your rights.
Let an experienced family lawyer handle your Texas conservatorship disputes
Conservatorship impacts all kinds of everyday decisions that you make for your child. Some have immediate consequences for your family, and others may determine the course of the child’s future. It’s no wonder why this part of the divorce is often the most painful and most contentious part of any divorce. At Scroggins Law Group, we believe this issue is too important and too emotional to take on without the assistance of legal counsel.
Attorney Mark L. Scroggins is board-certified in Family Law by the Texas Board of Legal Specializations and leads a team of experienced lawyers who are ready to take on the challenges of your conservatorship dispute. With more than 100 years of combined experience, we are prepared for the road that lies ahead. Scroggins Law Group serves communities throughout North Texas, including Frisco, Plano, and Dallas-Fort Worth. Please contact us to schedule a confidential consultation.
Texas Statutes, Family Code Chapter 153 Conservatorship, Possession, and Access, https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm
Texas Public Law, Family Code Sec. 153.002 Best Interest of the Child, https://texas.public.law/statutes/tex._fam._code_section_153.002