Child custody issues can arise in divorce as well as other family law matters outside of divorce. In either scenario, the basics of child custody are the same. This articles provides a very high level overview of the basic issues surrounding child custody in divorce and family law.
You can follow this link to learn more about how child custody decisions are made.
You can follow this link for a detailed discussion of child custody issues.
Let’s start with understanding the child custody is not a legal term. Child custody is a lay person’s term for 3 distinct legal issues in Texas: rights and duties; conservatorship, and possession and access.
Rights and Duties Concerning Children
Texas law provides parents and conservators with specific rights and duties. Some of these rights exist for a parent or conservator all of the time. Other rights exist only during that parent or conservator’s period of possession.
Most duties exist whenever a parent or conservator has physical possession of a child. Examples of duties include providing food, shelter, and clothing for a child.
In addition, some rights are allocated between parents or conservators in one of three ways. The first is exclusive, meaning one parent or conservator has that right.
The second option is independent, meaning either parent or conservator may exercise that right independent of the other parent or conservator.
The third option is joint, meaning that neither parent or conservator can exercise that right without the other parent or conservator’s agreement.
Note – I use the term parent or conservator because, in certain circumstances, these rights can be allocated to a non-parent. A parent may be a conservator but a conservator does not always have to be a parent of a child.
Conservatorship refers to decision-making authority. It includes the rights and duties discussed above. A conservator is a person with the legal right to make decisions for the child.
Texas has two distinct types of conservatorship: joint managing conservatorship and sole managing conservatorship. Joint managing conservatorship means that decision making rights are shared by at least two different conservators.
Sole managing conservatorship means that one person has the exclusive decision making right for the child. It does not, however, mean that there cannot be another parent or conservator with a right to possession and access to the child.
If someone, other than the sole managing conservator, has a right to possession and access of the child, then that person is called a possessory conservator.
Possession and Access
Possession and access is the legal term for what most people consider “child custody.” Possession and access is the legal right to have access to the child as well as the legal right to possession of the child. In most cases, there is no difference between these two rights.
Possession and access is usually set out in a Possession Order that is incorporated into a Final Decree of Divorce or a Final Order in a Suit Affecting the Parent-Child Relationship.
The custody terms for possession and access will set out the periods of possession for each parent as well as any other terms affecting possession. Other terms often include the location for exchange of possession as well as terms concerning what items are exchanged along with the child.