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.