What are the different types of Custody?
A common question that we get is whether it is possible for a client to get “full custody.” While “full custody” means different things to different people, it usually boils down to one of two things: either having the rights to make all parenting decisions for a child; or, having possession of a child, all of the time. We will discuss the first of those today. We will discuss possession issues later.
Initially, it is worth noting that the Texas Family Code, does not use the word “custody.” Rather, the word “Conservatorship” is used. “Conservatorship” is a Trust Law term, which denotes having an obligation to take a higher duty of care of something or someone, rather than merely taking possession of the something or someone.
In Texas, there are three (3) types of child conservatorships. They are: Joint Managing Conservatorship; Sole Managing Conservatorship;” and Possessory Conservatorship. Each of those terms indicates a different allocation of parental rights.
In a Joint Managing Conservatorship, most or all of the parental rights are shared. This means that the court has decided that either both parents must agree on a decision, or that either parent may make the decision. If the agreement of both parents is required, but there is not an agreement on a particular decision, then the court will make that decision.[1] It is statutorily presumed that the award of Joint Managing Conservatorship is in each child’s best interest. So, this is where the court starts, before hearing evidence.
In a Sole Managing Conservatorship, most of the significant decision-making rights are awarded to one parent or the other. A couple of the more weighty of these are the right to make educational decisions, and the right to make non-emergency, invasive, medical decisions. This last one includes surgeries, but also, consenting to medication being administered to a child. Some examples of when a Sole Managing Conservatorships might be awarded is when one parent is incompetent (such as an active drug addict); incarcerated; or, so high conflict that no reasonable agreement is likely to be reached with this parent.
The final type of Conservatorship is a Possessory Conservatorship. This is awarded to one parent when the other one is awarded a Sole Managing Conservatorship. A parent named possessory conservator shares with the managing conservator the rights to:
- Receive significant information from any other conservator about the child’s health, education or welfare
- Confer with another conservator as much as possible before that conservator makes a decision about the child’s health, education or welfare
- Access the child’s educational records, and consult with school officials about the child
- Attend the child’s school activities
- Be listed as an emergency contact for the child
- Manage the child’s estate, if it was created by the parent or the parent’s family
- Access the child’s medical records, and speak with medical professionals treating the child
- When the parent has possession: consent to non-invasive medical care (and invasive care, in emergencies)
- When the parent has possession: Direct the moral and religious training of the child
Courts presume that both parents should be involved in making important decisions for their children. But, when one parent has demonstrated an inability to reasonably be involved within that process, the court may decide to award decision-making rights to the other one.
[1] Our courts used to appoint tiebreakers, such as a child’s pediatrician or school teacher. Unfortunately, that lead to some bad outcomes for those third parties. Consequently, this practice is currently disfavored.