Conservatorship isn’t a word that’s used very often in everyday speech, however, you probably know more about it than you think you do. In layman’s terms, “conservatorship” is what most people think of as “legal custody,” and when used by Texas courts, it refers to how authority and decision-making power is split between parents.
While conservatorships share some of the same territory as guardianships and adoption, it’s actually not the same thing. Guardians are typically utilized for orphaned children or incapacitated adults, and adoption refers to a non-biological adult stepping into the mantel of full parental rights. In contrast, conservatorship cases address and divide parental authority while at least one of the parents is still alive, and comes up most often during divorce.
Here’s what you need to know about conservatorships in Texas, and how Neal Ashmore can help ensure that your arrangement is in the best interest of your child.
Divorce is not the only arena in which conservatorship cases arise, however it’s definitely the most common. And since a conservator’s rights, duties, and responsibilities will end up shaping crucial elements of your parenting plan, it might be helpful to know how this breaks down before heading into discussions with your spouse.
There are three basic types of conservatorships:
- Joint Managing Conservatorship;
- Sole Managing Conservatorship; and
- Possessory Conservator.
Usually when clients ask us if they can “get sole custody” of their child, what they’re really asking, is if they can have sole legal authority over their child, or rather, if they can become a “sole managing conservator.”
While the answer to this question depends on a number of individualized factors, the short answer is “probably not,” and here’s why.
Joint Managing Conservatorships
Studies have shown that a child’s best interest is served when they have a loving, healthy relationship with both parents. Because of this, Texas courts tend to favor decisions that divide power equally between parents. This not only leaves essential parental rights intact but also makes it easier for a child to cultivate relationships on both sides.
When the power division is equal, parents are coupled in a “joint managing conservatorship.” This means both sides must consent to all medical, health, and education decisions. It also grants each parent the right to show up at extra-curricular activities without permission, access to medical records, and to be included as an emergency contact in school forms.
Having equal authority, however, doesn’t mean that the amount of time spent with each parent will be equal—in fact, it most likely won’t be. Even in joint managing scenarios, it’s common for judges to give one parent exclusive control over the child’s primary residence, while the other gets visitation.
Sole Managing Conservatorship
When a joint managing conservatorship is not in a child’s best interest, it’s usually because doing so might cause further harm. Examples of this might be if there is a history of domestic violence or neglect. When courts elect to place the legal, decision-making authority squarely with one parent, this is called a “sole managing conservatorship.”
If you are made your child’s sole managing conservator, your spouse would not be able to operate with authority in any situation that requires parental power. Instead, you, alone, would have the authority to make decisions on behalf of your child.
When a sole managing conservatorship is awarded to one parent, the other is categorized as a “possessory conservator.” This parent has very limited authority over their child. According to the Texas Family Code, judges can use their discretion to grant certain rights in piecemeal increments, or not at all.
The decision to revoke parental rights is not something the court takes lightly. And unless your spouse willingly agrees to let you be a sole managing conservator, you will need to convince your judge there is a legitimate reason to bar these rights.
If you believe there are factors in your divorce that warrant making you a sole managing conservator, be sure to discuss these important details with your Neal Ashmore attorney.
Considering a Child’s Preference
Children do not have a presumed say in conservatorship decisions. However, if you want your child’s wishes to be considered, Neal Ashmore can submit a request asking the court to interview them. Judges are required to acquiesce all requests for children twelve and older, though, they have no obligation to do so if your child isn’t twelve. Some still do, though, and if this is something you want to pursue, be sure to notify your attorney.
In all cases, a child’s opinions are only one factor in a much larger picture, and while it can provide helpful context, their wishes aren’t likely to make or break a judge’s overall decision.
Couples are always free to negotiate and draft their own parenting plans, including conservatorship roles. For those who can’t, however, a judge will make these decisions for you, and incorporate them into your final parenting plan, which contains three main topics:
- The rights and duties of both parents (or rather, the conservator roles);
- Primary custody and visitation schedules; and
- Child support payments.
Custody and Visitation
As we mentioned earlier, even if you and your spouse are made joint managing conservators, that doesn’t mean your child’s time will be split equally between you. Instead, judges will usually appoint a custodial parent (which is where the child will live most of the time), and grant the other visitation rights.
Because of the high value Texas courts place on fostering parent/child relationships on both sides, almost all parents will get some kind of visitation—even if it’s just supervised.
Your judge will also likely include a provision for child support. Typically, these payments are made by the non-custodial parent, in order to help offset the extra financial burdens shouldered by the custodial parent.
All of these elements together (conservatorship, custody, and visitation, as well as child support) make up what courts refer to as a “parenting plan,” and will be incorporated into your final divorce order.
Suit Affecting the Parent-Child Relationship
The need to divide conservatorship responsibilities is not limited to divorcing couples. Parents who have never been married—but who also share a child—might also need a judge to help them formalize a parenting plan. While the process is essentially the same (whether married or unmarried), an unwed parent might find themselves with additional hurdles to clear (such as establishing paternity). If you have further questions about conservatorships involving a Suit Affecting the Parent-Child Relationship, don’t hesitate to contact your Neal Ashmore attorney to discuss your unique situation.
Conservatorship Attorneys in Texas
Divorce is never easy. At Neal Ashmore, we understand that nothing is more important to you than your child, and we are dedicated to fighting for their best interest—and yours. To discuss conservatorship rights with a skilled family law attorney, call us today at (972) 436-8000, or schedule a consultation online. When it comes to divorce, our top priority is earning your trust through consistent, effective communication, and by achieving results that give you peace of mind.