If you have a child and are separating from the other parent, one of the most important decision to make is who has custody of the child. A custody case may be part of a divorce proceeding if you are married, or it may be a stand-alone family law case if you are not married to the other parent.

You may have heard lots of different terms, like full custody, joint custody, primary custody, or 50/50 custody. In reality, Texas actually uses the word “conservatorship” to discuss what is commonly called “custody”.

A conservator of a child could be a managing conservator or a possessory conservator. And a managing conservator could be a sole managing conservator or a joint managing conservator. These terms have specific meanings in Texas law, and can also effect other issues like where the child lives, where the child goes to school, visitation schedules, and child support.

These issues are explained in more detail below.

Types of Conservators

There are two types of conservators — managing conservators and possessory conservators. And there are two types of managing conservators — sole managing conservators (SMC) and joint managing conservators (JMC).

A sole managing conservator is granted the exclusive right to make certain important decisions for the child. A joint managing conservator is one of two (or more) people who share the right to make these important decisions for the child.

A possessory conservator (PC) is someone who has the right to visitation with the child but generally is limited in making important decisions for the child.

Typically, if one parent is SMC, the other parent is a PC. If one parent is a JMC, the other parent is also a JMC. The law favors making both parents JMCs and that is the most common outcome, but it depends on the circumstances.

So what decisions are we talking about? A managing conservator has the right to decide where the child goes to school, to consent to medical and dental treatment, to consent to surgeries, and to consent to psychiatric treatment. There are other decisions that only managing conservators can make that may be important in particular cases, such as applying for a passport, consenting to marriage, consenting to adoption and consenting to joining the armed forces.

Child Support and Primary Residence

What about where the child lives and who pays child support? If one parent is SMC and the other parent is PC, the SMC gets to decide where the child lives and gets to receive child support from the PC. But what happens if both parents are designated JMC?

If the parents are named JMCs, the court will designate one parent to be the “primary” parent for purposes of receiving child support and choosing where the child lives. For example, if you are a JMC and designated primary, then the child will live primarily with you, the other parent will be given a visitation schedule, and you will be entitled to receive child support from the other parent.

Of course, this is all talking about a typical case. Parents can decide, or a court can rule, on different arrangements. Someone could be designated primary but not receive child support. Or someone could be designated primary, receive child support, but have a 50/50 visitation schedule.

To summarize,  conservatorship is an important consideration in any divorce involving children or other child custody case. But it is often only one of many crucial decisions that have to be made. Conservatorship will influence, but may not determine, such critical issues as where the child lives, how often the other parent sees the child, and how much that parent will pay in child support.

Who Can Ask for Custody?

So far we have only been talking about parents, but is there anyone else who can ask for custody, like a relative or friend? The short answer is yes, but it often depends on a lot of factors.

So, who else can ask for custody? Here are some of the most common ones:

  • anyone who has been appointed by a court as the guardian of the child through a guardianship proceedings
  • someone who has court-ordered visitation rights from a previous court proceeding
  • a man who is alleging paternity but has not been legally recognized as the father yet
  • a person who has had actual care, control and possession of a child for at least the last 6 months
  • a grandparent or other relative under certain circumstances
  • a person who has been given written consent for adoption by the biological parents
  • a foster parent who has had the child for at least 12 months
  • an intended parent under a gestational agreement
  • Child Protective Services (CPS) in cases of abuse or neglect

What Does the Court Consider?

The Court looks at several different factors when it makes decisions on matters of child custody. It will consider which person can best provide for the child’s physical and emotional needs, and whether any party would pose a danger to the child’s physical or emotional health.

The Court will also consider the stability of the home environment, the plans for the child, how well the parent get along with each other, parenting skills, and who has been the child’s primary caregiver.

The Court can also consider the wishes of the child, particularly for older children. Courts will often look at criminal histories, past CPS cases, drug and alcohol use, instances of domestic violence or child abuse, and sexual conduct as possible concerns.

The overriding concern is the best interest of the child.

Contact our San Antonio Custody Lawyer

Child custody cases can be complex with a lot at stake. Courts will often take a deep look at your life history. It is to your advantage to present yourself in the most favorable light, to explain any issues in your history, and to discuss your concerns about the other parent in an organized and effective manner. Let an experienced child custody attorney help you navigate this process. If you’re ready to discuss your legal options, let’s get started by scheduling a free consultation.

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