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Divorce 101: Part C — with children

What is the difference between “custody” and “conservatorship”?  

“Conservatorship” is basically the term used in Texas to name the state of the relationship between the parents and the children after a divorce or separation of the parents.  The word “custody” relates more to the physical possession of the children.  Texas law does not generally use the term “custody”.

What is Joint Managing Conservatorship?

Joint Managing Conservatorship is the relationship between the parents and the children that is presumed to be in the best interest of the children under the Texas Family Code. It boils down to the sharing of various rights and duties awarded to the parents.  However, if there is credible evidence of family violence or child abuse/neglect, the parent with such a history cannot be appointed a joint managing conservator.  The primary consideration of a court for all orders related to a child is the “best interest of the child.”

What are the rights and duties of a parent who is appointed a Joint Managing Conservator?

          Under the Texas Family Code, the following is general list of the rights and

duties to be assigned to one or both joint managing conservators, to be held jointly, independently, exclusively by one parent, or subject to conferring with the other parent:

to receive information from any other conservator of the children concerning the health, education, and welfare of the children;

to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children;

of access to medical, dental, psychological, and educational records of the children;

to consult with a physician, dentist, or psychologist of the children;

to consult with school officials concerning the children’s welfare and educational status, including school activities;

to attend school activities;

to be designated on the children’s records as a person to be notified in case of an emergency;

to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the children;

to manage the estates of the children to the extent the estates have been created by the parent or the parent’s family.

to inform the other conservator of the children in a timely manner of significant information concerning the health, education, and welfare of the children;

to inform the other conservator of the children if the conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter;

of care, control, protection, and reasonable discipline of the children;

to support the children, including providing the children with clothing, food, shelter, and medical and dental care not involving an invasive procedure;

to consent for the children to medical and dental care not involving an invasive procedure;

to direct the moral and religious training of the children;

                     to consent to medical, dental, and surgical treatment involving invasive


                     to consent to psychiatric and psychological treatment of the children;

                     to represent the children in legal action and to make other decisions of

                     substantial legal significance concerning the children;

                     to consent to marriage and to enlistment in the armed forces of the United


                     to make decisions concerning the children’s education;

                     to the services and earnings of the children;

                     except when a guardian of the children’s estates or a guardian or attorney

                     ad litem has been appointed for the children, the right to act

                     as an agent of the children in relation to the children’s estates if the

children’s action is required by a state, the United States, or a foreign government; and

to manage the estates of the children to the extent the estates have been created by community property or the joint property of the parent.

What is a geographic or domicile restriction?

A restriction on where a child will reside, generally limited to a specific county or a county and the counties that are adjacent to that particular county, or a school district.  Most courts will order such a restriction if both parents live in the same geographic area at the time of the divorce.  Usually, such a restriction on the residence of a child will be lifted if the other parent (who does not have the right to establish the primary residence) no longer resides in that particular geographic area.  Such a restriction can be lifted by agreement of the parents at any time or by the Court under the appropriate circumstances.

Does Joint Managing Conservatorship mean Equal Possession of the Children?

No.  Although there is a presumption that it is in the best interest of a child that the parents be appointed joint managing conservators, there is no similar presumption that equal possession of the child is in the child’s best interest.

What are a Standard Possession Order and an Expanded Standard Possession Order?

What is known as a “Standard Possession Order” is generally when the parent who does not have the right to establish the primary residence of the child is awarded the first, third, and fifth weekend of each month, beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on Sunday, along with a few hours on Thursdays during the school term, extended time in the summer, and alternating holiday time.  The start times of the possession schedule can also begin at the time school recesses on the particular days (usually Thursdays and 1st, 3rd, and 5th Fridays).

An “Expanded” or “Extended” Standard Possession Order relates to the addition of mid-week overnight possession (usually Thursday) and Sunday overnight possession whereby the possession ends when school starts the following morning (Friday or Monday as applicable).   An “Expanded” or “Extended” schedule is the choice of the parent who does not have the “primary possession” of the child, unless the court finds that such an expansion is not in the child’s best interest.  Factors the court considers to deny such an election or choice are the distance to the child’s school from that parent’s home, any homework issues, tardy issues, travel time, the parent’s work schedule, etc.  

Further, the times and lengths of a possession schedule depend upon the distance between the parents’ residences – usually 100 miles or more and 100 miles or less.  Certain overnight possession periods are limited or removed when the parents are more than 100 miles away from each other and additional summer days and school breaks are ordered to the distant parent.

Which rights or duties are the fought over the most between divorcing parents?

The right to establish the primary residence of a child (which usually determines the school the child will attend and the receipt of child support) is the biggest dispute.  Also, the right to make educational decisions for a child, the right to consent to non-emergency invasive procedures (wisdom teeth removal, body piercing, tattoos, shots, tonsil removal, etc.), and the right to consent to psychological and/or mental health counseling are often contested.

What does Sole Managing Conservatorship mean and does it still exist in Texas?

Simply put, Sole Managing Conservatorship is now ordered when there is family violence or child abuse/neglect and the parent appointed Sole Managing Conservator has the majority of the rights and duties listed above exclusively awarded to that parent.  It also often includes limited or supervised possession by the “Possessory” Conservator.  In the past, Sole Managing Conservator and Possessory Conservator were the terms used in most cases regardless of any family violence or neglect.  Since the mid-1990s, however, those titles and the mostly one-sided award of the substantive rights and duties have been phased down to very specific situations, with the appointment of the parents as joint managing conservators and sharing most of the rights and duties being the norm and presumed to be in the best interest of the child. 

Are mothers presumed and/or preferred as the “Primary” parent?

No.  For young children, such a presumption was also called the “Tender Years Doctrine” and applied to the mother having the primary possession and the majority of the time with a young child.  The Texas Family Code specifically prohibits a court from discriminating against a parent because of their gender, the gender of the child, or the marital status of the parent.  Additionally, many fathers have worked together and independently to persuade the Texas Legislature to pass laws that make the rights of both parents more equal.  Further, the Texas Family Code has recently been modified related to possession and access to a child under the age of 3 years with the courts moving toward more frequent contact with a non-primary parent and a young child.

What if a spouse is pregnant while the divorce is pending?

There is a presumption that a child born during the marriage or within 301 days after the divorce of the spouses is a child of the marriage. DNA paternity testing can challenge the presumption.

What can I do if I don’t think I am the father or that my spouse is the father of a child?

The short answer is to obtain a DNA paternity test.  This answer, however, does not take into consideration what you will do with the results.  Talk to an attorney and/or counselor to help you make this decision.  If you have a close relationship (or the presumed father does) with the child and that person has been the only father the child has known and/or is very close to the child, the emotional and psychological connection with the child may be more important than biology.  Remember, the child is the center of such a situation and must be taken into consideration as well.