Realizing that a marriage is headed for divorce is never easy, particularly when there are minor children involved. In fact, parents frequently stay together far longer than they would otherwise because they are concerned about the impact a divorce will have on the children. Ironically, those same parents sometimes turn right around and wage an all-out war for conservatorship (custody) of the children, turning what could be an amicable divorce into a contentious battlefield. If you believe your marriage is headed for divorce, and you foresee a battle over conservatorship looming in the distance, the time to prepare is now. Preparing for a custody battle in Texas begins with understanding how conservatorship and possession and access work in Texas. Although there is no real substitute for consulting with an experienced family law attorney, to get you started, a McKinney child custody attorney explains the concept of conservatorship.
Any discussion about custody and/or visitation should begin with a brief explanation of important terms, particularly since Texas uses terminology that is a little different than what you are likely used to hearing. Specifically, the terms “custody” and “visitation” are not used in Texas. Instead, the terms “conservatorship” and “possession and access” are used instead.
Although they are not completely interchangeable, think of the term “conservatorship” as the Texas term for custody. Conservatorship deals with a parent’s rights and duties where a child is concerned. For example, a parent that has conservatorship over a minor child has the right to make important decisions relating to the child, such as where the child will go to school and what medical treatment the child will receive. Conservatorship can be joint or sole. When the parents share the rights and duties regarding the minor child it is referred to as “joint managing conservatorship.” If one parent alone has those rights and duties the parent has “sole managing conservatorship.”
When the parents of a minor child go through a divorce, the law requires the parents to submit a Parenting Plan to the court for approval as part of the divorce process. Among other things, the Parenting Plan will outline who has conservatorship of the child and the terms of possession and access to the child post-divorce. Ideally, the parents are able to reach an out of court agreement regarding conservatorship that is then reflected in the Parenting Plan. If the parents are unable to reach an agreement, the court will have to make the decision.
The Texas Family Code Section 153 governs conservatorship, possession and access, which is where guidance can be found when a court must decide these issues. First and foremost, a court must use the “best interest of the child” standard when deciding who to appoint as a child’s conservator. Unlike years past, there is no presumption in favor of the mother when deciding conservatorship nor may the court consider the marital status of a parent when deciding the issue of conservatorship. Some of the numerous factors the court may consider include:
A history of domestic violence in the family
The child’s wishes if the child is old enough
The relationship between the parent and child
A parent’s stability
A parent’s ability to financially provide for the child
A parent’s willingness to communicate with the other parent regarding the child
If you believe that divorce is in your near future and you believe that conservatorship of a minor child will be contested during the divorce, it is in your best interest to consult with an experienced Fort Worth child custody attorney now to ensure that your rights are protected throughout the divorce process.
If you have additional questions or concerns about conservatorship and/or possession and access in a Texas divorce, contact an experienced McKinney child custody attorney at The Law Office of Jon R. Boyd to schedule your appointment today.