Unless you are a lawyer or have been through a divorce recently, you might be surprised to know that in Texas, lawyers don’t use the word “custody” anymore. In family law cases where children are involved, you’ll instead hear words like “conservatorship,” “rights and duties,” and the “primary parent.” In fact, “custody” has been replaced in the legal vernacular with “conservatorship and possession.” So what does “conservatorship and possession” mean?
Possession is easy enough to explain. Who gets the child on what days? Will the periods of possession be supervised? Who gets which holidays and in what years? These issues need to be worked out by agreement or ordered by a judge, but for the most part the mechanics of possession have remained in a familiar form for decades.
Conservatorship is a little more difficult to explain and can be problematic in practice. An analogy may useful. Every year in law schools across the country, first- year law students are introduced to the world of property law by learning about the “bundle of sticks,” which represent the different ways you can own property. For example, when you lease an apartment, you have the right to live in that space but you don’t have the right to sell it. Or you may own a parcel of land but not own the minerals underneath it. And one person may own those minerals while yet another person has the right to drill for them. All the conceivable forms of ownership are represented by a different stick. And your ownership of a piece of real property depends on which sticks are in your bundle.
Conservatorship is like a bundle of sticks, too, except here the sticks represent the rights and duties a parent has with respect to a child. There is a right to designate the primary residence of the child, a right to make educational decisions for the child, a right to consent to invasive medical procedures for the child, a right to consent to a child’s psychiatric and psychological treatments, and so on. Each right can be awarded to one parent exclusively, to both parents such that they must agree, or each parent independently (except for the right to designate the primary residence of the child, which must be awarded exclusively to one conservator, unless the conservators agree that nobody will have this right exclusively and that the child’s residence will be restricted to a geographic area).
There is a rebuttable presumption that it is in the best interest of the child or children that parents are appointed joint managing conservators. What does this mean? Joint managing conservatorship, as defined in the Texas Family Code, means “the sharing of rights and duties of a parent by two parties, ordinarily parents, even if the exclusive right to make certain decisions may be awarded to one party.” So by default, parents will generally share most of the rights to make decisions about the children jointly.
“There is a right to designate the primary residence of the child, a right to make educational decisions for the child, a right to consent to invasive medical procedures for the child, a right to consent to a child’s psychiatric and psychological treatments, and so on.”
It is important to know that some of these rights—even very important ones—are not well defined for every situation. For instance, there are surprisingly few cases that explain what exactly an “invasive procedure” means. An appendectomy seems invasive, but is getting braces an invasive procedure? The Texas Family Code does not tell us, although some courts have borrowed the Texas Health & Safety Code’s definition of an invasive procedure which means any operation involving an incision that can cause bleeding. For any parent attempting to settle a divorce, the prudent thing would be to define as many of the ambiguous rights and duties as specifically as possible.
The right to designate the child’s “primary residence” is even more difficult to define precisely. What exactly does this right mean? It has often been interpreted to mean the right to determine where the child goes to school. And in situations where one parent has more than 50 percent of possession, that is indeed what the right to designate the child’s primary residence often means, absent agreement otherwise. But what about 50/50 possession schedules? And what does the right to make educational decisions mean and how does that right impact the right to designate the child’s primary residence?
A recent case from the Austin Court of Appeals has cut to the heart of why the right to “designate the child’s primary residence” is problematic as it does not necessarily mean the right to determine where the child goes to school (although often interpreted that way). In that case, the parents had a 50/50 possession schedule, but the father had the right to determine the children’s primary residence. Their Agreed Decree of Divorce also stated that father and mother would share the “right, subject to the agreement of the other parent conservator, to make decisions concerning the children’s education.” At a hearing on temporary orders, the trial court awarded the mother the right, on a temporary basis, to decide where the children would be enrolled in school. The father appealed, arguing that the court’s order violated his status as the conservator with the right to designate the children’s primary residence, which cannot be altered by temporary orders, absent special circumstances. In other words, the father assumed, as many parents and lawyers have, that the right to designate a child’s primary residence naturally means the right to decide where the child goes to school. The Texas Court of Appeals out of Austin disagreed, however, stating that the father’s right to decide the primary residence of the children was not affected.
Commentators have worried whether this decision makes the right to designate a child’s primary residence essentially meaningless. On the other hand, it is difficult to see that the right was clearly defined in the first place. Until the courts bring greater clarity to this subject, the important point for those involved in a divorce with children is to understand that an agreement about the exact scope of each of the rights and duties will be important to establish in order to avoid future litigation.