Alamo Towers West, 901 NE Loop 410,
Suite 800,
San Antonio, TX 78209
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Child Custody Lawyer San Antonio

Child Custody Attorney

"Conservatorship."  What's That?

“Custody” is called “conservatorship” in the Texas Family Code.  We’ll use the two terms interchangeably since custody tends to be a more familiar term to most people. 

The Legal Standard for Deciding Custody

The court is not primarily concerned with “what each parent wants” or “what each parent thinks is best.”  The Family Code charges Texas courts with determining what’s in the best interest of the children.  Thus, the “best interests of the children” are the primary consideration and legal standard used by Texas courts.

Texas Policy on Parenting

The “best interests of the children” are the primary consideration and legal standard used by Texas courts.

The State's policy is to assure that children have frequent contact with parents who have shown an ability to act in the best interest of the children.  Texas further encourages divorced parents to share in the rights and duties of raising the children.  The State's policy merely expresses a preference.  It does not establish a requirement that courts must follow—if the facts support that a different arrangement is in the best interests of the children.

Moms Don't Always Get Custody

Some people believe courts are biased toward awarding custody to the mother.  That belief is wrong.  Favoring one parent because of gender or marital status is not public policy.  In fact, it is contrary to Texas public policy.  Actual cases prove this point.  The difference between the number of times the mother versus the father is awarded “primary custody” is not that great.  The best interests of the children as determined by the facts of each case govern the outcome.

Parents Get Custody...Unless

Parents Are Preferred

The court must appoint at least one “managing conservator” whenever children are involved.  The law presumes that one or both parents should be named managing conservator—unless the facts support that doing so is not in the best interest of the children. 

A Non-Parent Can Get Custody, But It's Rare

Appointing a non-parent as managing conservator is rare.  When it occurs, however, the court may appoint a competent adult such as a grandparent or other person with whom the children have a close and healthy relationship.  If required, the court also may appoint an authorized agency as managing conservator.  Appointing a non-parent as managing conservator usually stems from serious issues such as parental violence, abandonment, incarceration, neglect or abuse.

Children Sometimes Can Express Their Preference

In some circumstances, a child may be permitted to tell the court in the privacy of the judge’s chambers who they prefer to have custody.  The judge will consider the child’s wishes.  The judge, however, is not bound to follow the child’s wishes if some other arrangement is determined to be in the best interests of the child.

Types of Custody Arrangements

Joint Managing Conservator

Appointment of both parents as Joint Managing Conservators (or JMCs) is the court’s preference and the usual outcome.  This next point should be grasped clearly.  JMC does not necessarily mean a “50-50 split” of living arrangements.  One of the JMCs normally will be designated as having “the exclusive right to determine the primary residence of the child.”  The child lives with that conservator.  That conservator’s residence determines where the child goes to school.  The other conservator receives visitation and contact rights (e.g. phone, email and text)—called “possession and access rights" in the Family Code.  See this website’s section on visitation for a discussion of standard rights.

Next, we'll describe what JMC mostly is about.  While a court has discretion to tailor a parent’s rights, both parents as JMCs usually receive equal rights in terms of the following:

  • The right to receive information from the other JMC concerning the health, education and welfare of the child;
  • The right to confer with the other JMC—to the extent possible—before making decisions concerning the health, education and welfare of the child;
  • The right to access medical, dental, psychological and educational records of the child;
  • The right to consult with a physician, dentist or psychologist of the child;
  • The right to consult with teachers and other school officials;
  • The right to attend school activities;
  • The right to be designated as an emergency contact in school records; and,
  • Other rights as listed in the court order.

Sole Managing Conservator

If appointment of both parents as JMCs is not in the best interests of the child, then the court typically appoints one parent as Sole Managing Conservator (or SMC).  In contrast with JMC where most rights are shared, a parent appointed as SMC receives many exclusive rights, such as:

  • The exclusive right to designate the primary residence of the child;
  • The exclusive right to consent to medical, dental and surgical treatment;
  • The exclusive right to consent to psychiatric and psychological treatment;
  • The exclusive right to make decisions concerning the child’s education; and,
  • Other exclusive rights as listed in the court order.

Possessory Conservator

Generally, when one parent is appointed SMC, the other parent is appointed as a Possessory Conservator (PC) unless doing so would endanger the child’s physical or emotional welfare.  The rights of a PC will be tailored in the court's order.  A PC’s rights normally include:

  • The right to receive information about the child’s health, education and welfare (noting that this does not include the right to make decisions);
  • The right to attend school activities;
  • The right to visitation (“possession and access”) as stated in the court order; and,
  • Other rights as listed in the court order.  

 

 



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Alamo Towers West, 901 NE Loop 410, Suite 800, San Antonio, TX 78209
| Phone: 210-762-4502

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