I have a lot of people tell me they have "full custody" or want "full custody" of their children. This leaves myself and other attorneys very confused. In Texas, there is no such thing as "full custody." When I am faced with this, I often ask what "full custody" means to that person, to allow me a starting point in explaining Texas law. In Texas, there are several aspects to Orders regarding children. These Orders include Conservatorship, Possession & Access, and Child Support & Medical Support. I will address each below.
A parent can either be appointed a Joint Managing Conservator, a Sole Managing Conservator, or a Possessory Conservator.
Joint Managing Conservator. This is the most common type of conservatorship in Texas. Generally, both parents are appointed as Joint Managing Conservator (JMC) with one having the exclusive right to designate the primary residence (also known as the "Primary Conservator"). Not all cases have a designated Primary Conservator. This usually occurs when the parents have 50/50 possession time. JOINT MANAGING CONSERVATOR DOES NOT MEAN 50/50 POSSESSION. In fact, conservatorship has zero bearing on a parent's possession and access. Texas Family Code Sec. 153.135 states, "Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of or access to the child to each of the joint conservators."
This portion of Orders regarding children has to do with a parent's legal rights and duties, such as:
- the right to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
- the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
- the right of access to 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 school officials concerning the child's welfare and educational status, including school activities;
- the right to attend school activities;
- the right to be designated on the child's records as a person to be notified in case of an emergency;
- the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child;
- the right to manage the estate of the child to the extent the estate has been created by the parent or the parent's family;
- the duty of care, control, protection, and reasonable discipline of the child;
- the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
- the right to consent for the child to medical and dental care not involving an invasive procedure;
- the right to direct the moral and religious training of the child;
- the right to designate the primary residence of the child;
- the right to consent to medical, dental, and surgical treatment involving invasive procedures;
- the right to consent to psychiatric and psychological treatment of the child;
- the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
- the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
- the right to consent to marriage and to enlistment in the armed forces of the United States;
- the right to make decisions concerning the child's education;
- except as provided by section 264.0111 of the Texas Family Code, the right to the services and earnings of the child;
- except when a guardian of the child's estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child's estate if the child's action is required by a state, the United States, or a foreign government; and
- the duty to manage the estate of the child to the extent the estate has been created by community property or the joint property of the parent.
These rights and duties can be exclusive (that parent is the only one with that right), independent (that parent doesn't have to agree or consult with the other parent before making a decision), independent after consulting with other parent (the parent must consult with the other parent before making a decision but they do not have to agree), or by agreement (the parents must agree before an action can be taken). If you have to agree and cannot, the parties must consult an appointed tiebreaker, if no tiebreaker was designated in the Orders, they must return to court for a decision from the Judge.
Possession and Access
Possession and Access determines which parent the child is with at any given time. With the exception of very few cases, Orders in Texas state that possession and access is BY AGREEMENT but in the absence of an agreement, the parties have a schedule to follow. This means that if the parties agree, that agreement overrules the schedule in the Order.
The Texas Legislature came up with a standard possession schedule for parents to follow. To simplify it, the non-primary parent gets:
- weekends beginning on at 6 pm on the first, third, and fifth Friday of each month and ending at 6 pm the following Sunday. (In the instance of a month with 5 Fridays, the parent will get two weekends in a row. This happens around 4 times per year).
- during the school year, Thursdays from 6 pm until 8 pm
- any day the school is closed that comes directly before or after that parent's weekend
- 30 consecutive days in the summer
- every other spring break, Thanksgiving, Christmas, and New Years (these alternate: spring break and Christmas are the same year, while Thanksgiving and New Years are the same year).
- Mom gets Mother's Day weekend and Dad gets Father's Day weekend from 6 pm of Friday until 6 pm on Sunday.
These are altered some for parents who live more than 100 miles apart.
The Primary parent gets the time not specified for the non-primary parent.
This schedule can be customized to the parties, and often is. Parties can also agree to a 50/50 possession schedule. As long as the parties agree, they can be as creative as they would like.
The Texas Legislature has set up guidelines for child support. Generally, the non-primary parent is ordered to pay 20% for the first child and 5% for each additional child, up to 50%. They get a deduction of 2 1/2% for each child not in this case for which they owe a duty to support (whether or not there is a child support order). When figuring this number they figure it after taxes and the cost of the child's insurance (if they pay it).
Standard practice is for the non-primary to provide or pay the providing parent the cost of the insurance premium for the child(ren). Parents are also to split unreimbursed medical expenses 50%/50%. The receipt must be provided to the non-incurring parent within 30 days and that parent must reimburse within 30 days.
Although this is a long post, it is important for parents to have an understanding of what these things mean. I hope this has been helpful. Please contact me if you have any questions or need help with your custody agreement.