In Texas, the term “conservatorship” is used to describe child custody. Conservatorship includes various rights, including but not limited to the right to make important decisions for a child, receive information about the child’s welfare, have access to the child’s medical and educational records, and consent to medical treatment.
Parents may try to design their own plan for conservatorship, but if they cannot resolve their differences, a judge or jury may decide the matter. Even if the parents agree on conservatorship, the court must approve their written agreement. The court will be guided by what is in the child’s best interests, which are determined by looking at a broad range of factors, including the child’s physical and emotional needs, potential physical or emotional dangers, stability, cooperation between the parents, who has been a child’s primary caregiver, geographic proximity, keeping siblings together, and each parent’s fitness to parent. The court will consider reports of abuse or family violence in its determination about a child’s best interests.
The presumption is that the parents should be joint managing conservators, although in some cases parents are not able to get along well enough to make serious decisions jointly, and in those cases, certain rights may be awarded to only one parent. In some cases, sole managing conservatorship is awarded, meaning only one parent has the right to decide the child’s primary residence, consent to medical treatments, and make other important decisions regarding the child.
Visitation is called possession and access in Texas. Texas has the standard possession order, which often dictates the time that each parent spends with a child. Parents usually share possession and access, unless it is not in the child’s best interest or may endanger the child. The primary custodial parent typically receives child support for the child.
However, the developmental needs of a child may affect possession and access. For example, a toddler’s needs are significantly different from an older teenager’s. Possession and access with a toddler usually needs to be regular and consistent to ensure that the toddler bonds with both parents. An older teenager, on the other hand, may be mature enough to have a preference related to possession and access. In Texas, the court must consider a child’s preferences if 12 years of age or older, and an in-chambers conference with the child is requested.
A non-parent may also have standing to petition the court for custody if the child has lived with them for six months or previously lived with the non-parent for six months and only moved out within 90 days of the petition being filed. A non-parent named by the court as a child’s guardian also has standing to petition the court for custody. If these conditions are not met, a non-parent may file an original action for a managing conservatorship (but not possessory conservatorship) if they can prove under Texas Family Code section 102.004 that the child’s development is being harmed due to unfit parents or living conditions, or both parents (or a surviving parent, appointed managing conservator, or custodian) agree that the child should live with the grandparent.