Thomas P. Carnes
(830) 997-7790 968 Braeutigam Road
Fredericksburg, Texas 78624

Thomas P. Carnes, A Civil Trial Lawyer Serving the Texas Hill Country
Practice Areas

Family Law

Child Issues - Conservatorship

If there are children of a marriage that is ending in divorce, issues as to the children will likely predominate. Fortunately, the roles of parents have changed over the past decades, and Texas law has, at least to an extent, caught up. The resolution of custody issues no longer approaches “winner take all” in the average case with two, relatively normal, parents with no real parenting deficits.

Texas has a presumption of joint managing conservatorship. In the vast majority of cases, therefore, both parents will be named joint managing conservators. So what does this mean?

In Texas, conservatorship today has nothing at all to do with possession. Conservatorship only has to do with the rights and duties associated with raising a child.

One party will ultimately be named the joint managing conservator with the right to designate the child’s primary residence. That parent can accurately be called the primary joint managing conservator. The other parent will, of necessity, not have the primary possession of the child, but will have possession pursuant to a possession order contained in the final decree of divorce.

The right to designate the primary residence of the child may or may not be unlimited. The Texas Family Code provides for geographical restrictions, and courts more often than not embrace them. This is particularly true if both parents live near the child and are active participants the child’s life. The geographic restriction generally limits the primary residence to a county, or a collection of contiguous counties, so long as the other parent remains in that county or collection of counties. This is an important limitation to any non-custodial parent who seeks to remain actively involved in a child’s life. Given the philosophy of the legislature and the courts favoring such restrictions, any non-custodial parent should seek such a restriction. Such a restriction will almost always be granted during the pendency of the case, through temporary orders. In practice, on final divorce, the burden is generally on the party seeking to avoid such a restriction to articulate a powerful reason why such a restriction should not be included. In a modification case, again, absent some cogent reason, escaping from a geographical restriction is difficult.

The parent with the right to designate the child’s residence will also almost certainly receive child support and medical support from the other parent for any minor child, or for any adult disabled child. The subject of support is dealt with separately herein under another subtopic.

The other rights and duties involve such things as educational decisions (which largely fall to the parent determining the primary residence, unless the child is in private school or is in a school district with school choice), medical decisions, financial decisions, and decisions involving the child getting married or joining the armed forces prior to adulthood. Generally, the allocation of these rights and duties between parents varies widely, and the allocation determines to what extent the parents are truly joint managing conservators or are largely such in name only. There is a tendency of attorneys to skip over this allocation. That is a mistake.

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