Information Concerning Conservatorship Orders

Managing Conservator & Possessory Conservator

Under the Texas Family Code, a parent may be appointed a “managing conservator” or “possessory conservator” of a child.

In general, a possessory conservator has limited authority to make decisions on behalf of the child. A managing conservator has broader authority with respect to making decisions and thereby can exercise greater influence over the child and provide more guidance with respect to the avenues available to the child.

Joint custody (“joint managing conservatorship” in Texas) does NOT require an equal division of possession time related to the child. There generally is a specific possession schedule agreed upon by the joint managing conservators, but it usually does not involve a 50-50 division of time.

The “managing conservatorship” designation refers to decision making authority with respect to the child rather than a specific timetable for possession of the child.

Types Of Parental Rights

There are three lists of “parental rights” defined by the Texas Family Code.

The Family Code recognizes that a parent has certain rights by reason of just being a parent. Those rights are afforded every parent without regard to whether that parent is appointed as a managing or possessory conservator of the child. Those rights are referred to as the “general rights of a conservator” and a parent is entitled to those rights at all times.

A parent also has certain rights while that parent has possession of a child. Those are additional rights a parent has just by reason of being a parent, but they are limited to the times the parent has possession of the child. Those rights are usually referred to as the “rights of a conservator during possession of the child”.

A possessory conservator has the powers of a parent stated in the prior paragraphs; however, a possessory conservator is usually not allocated any other powers. On the other hand, a managing conservator will usually have decision making authority beyond the powers outlined in the prior paragraphs.

The parental rights of a managing conservator include a wide range of decision making authority. That authority may be exercised jointly by the parents or allocated between the parents in some other fashion the parties believe to be workable. If the parents are unable to make an agreement concerning the exercise of the important parental rights, the court will certainly allocate those rights between them.

The most important parental rights are:

  • Authority to select the child’s residence,
  • Authority to select the child’s health care providers,
  • Authority to select the child’s school and make other education decisions.
  • Generally, the parent that the court deems best to have primary possession of the child will be given authority to make the decisions in all of those areas.

The other conservatorship rights are not as significant as the three previously mentioned because the other parental powers are infrequently used.

Parental Rights & Duties Related To Children

General Rights Of Conservators At All Times –

Each parent conservator will have the following rights at all times:

  • Access to medical, dental, psychological and other health care records.
  • Access to educational records.
  • Right to consult with physician, psychologist, dentist or other health care provider.
  • Right to consult with school officials.
  • Right to attend and participate in school activities.
  • Right to be designated as a person to be notified in case of an emergency.
  • Right to manage assets from the conservator’s relatives.

Rights Of Conservators During Possession Of Child –

Each parent conservator will have the following rights and duties during possession of the child:

  • Right to conduct moral and religious training.
  • Duty of care, control, protection, and reasonable discipline.
  • Duty of support, including clothing, food, and shelter.
  • Duty to provide medical, surgical, dental and other health care that are not involve invasive procedures.
  • Consent to medical, dental, surgical and other health care treatment in the event of an emergency.

Rights Of Sole Managing Conservator –

The parent Sole Managing Conservator will have the following rights:

  • Establish the residence of the child.
  • Consent to enlistment in the armed forces.
  • Consent to marriage.
  • Consent to medical, dental, surgical or other health care.
  • Consent to psychological or psychiatric treatment.
  • Right to services and earnings.
  • Represent the child in legal actions and make decisions of legal significance.
  • Act on behalf of the child or the child’s estate if action is required by a governmental agency.
  • Receive support payments.
  • Disburse support payments.
  • Make education decisions.

Rights Of Joint Managing Conservators –

The parent Joint Managing Conservators will have the following rights allocated between them in some fashion:

  • Establish the residence of the child.
  • Consent to enlistment in the armed forces.
  • Consent to marriage.
  • Consent to medical, dental, surgical or other health care.
  • Consent to psychological or psychiatric treatment.
  • Right to services and earnings.
  • Represent the child in legal actions and make decisions of legal significance.
  • Act on behalf of the child or the child’s estate if action is required by a governmental agency.
  • Receive support payments.
  • Disburse support payments.
  • Make education decisions.

Some of the parental rights may require consultation between the parties or an agreement of the parents in order to take action. With respect to some decisions, one parent may have ultimate decision making authority but is able to exercise only after discussing the issue with the other parent.

Restrictions Upon The Child’s Place Of Residence

Many judges have a policy of restricting the location of a child’s residence to the county in which the divorce was filed and the surrounding counties. Those types of orders are entered to prevent the parent who has the authority to select the child’s residence from moving the child a considerable distance away from the other parent and thereby damage the relationship with that other parent.

Restrictions Upon The Exercise Of Other Parental Rights

The parents may make an agreement that places limitations upon one parent’s right to make decisions for the child. For example, there may be an obligation for the parents to consult with one another concerning the selection of health care providers, but if they do not agree upon who should provide the services, one of the parents may be given ultimate authority to make the selection.

Other decisions may be handled in a similar fashion. If the parents believe the child should attend private school, the parent who is to pay for the cost of it might be given final authority to decide which institution the child attends.

Health Care Expenses

Generally, the court will order one parent to maintain health care insurance for the child during the period of time child support is to be paid. However, medical insurance coverage usually does not pay all of the child’s health care expenses. Therefore, the parents can agree upon (or the court will order) an allocation between the parents of the uninsured expenses. It is common for the judge to order that each parent pay 50% of the health care expenses that are not covered by insurance.

Obligations Commonly Found In Court Orders

Aside from those previously mentioned, other provisions commonly found in orders related to children include:

The obligation of each parent to:

  • Furnish the other parent with copies of report cards, test results, medical and dental reports, schedules of the child’s activities, etc..
  • Make a good-faith effort to foster the love, respect and affection of the child for the other parent.
  • Avoid the temptation to alienate the affections of the child toward the other parent or undertake any actions detrimental to the relationship between the child and the other parent.
  • Make a good-faith effort to communicate with each other and cooperate in the making of decisions and policies related to the child.
  • Consider the best interests of the child and be guided by such considerations in communicating with the other parent, communicating with the child and in making decisions or taking actions that affect the child.
  • Promptly provide the other parent with notification of any injury, illness or emergency care related to the child.
    Allow the child to have the right to communicate with the other parent by telephone and mail.

Parents may also deem it advisable to decide upon matters that the court may have no authority to handle or may elect not to handle, including:

  • The management of assets invested for the child.
  • The management of life insurance proceeds paid into trust for the benefit of the child.
  • The payment of college expenses and any limitations there might be with respect to those liabilities.
  • The payment of elective health care expenses that are not covered by insurance.

Conclusion

In general, parents can do a much better job of assessing the needs of their children and allocating parental authority between them than the judge can do. For that reason, the judge will always encourage the parties to make such agreements and may require that the parties participate in mediation prior to asking the court for a trial setting. If an agreement is reached, the judge will virtually never question the wisdom of the agreed conservatorship orders.

If the parents do not reach an agreement about who should have parental authority, the judge will virtually always designate one parent with sole authority to select the child’s place of residence, select health care providers and make educational decisions. Beyond those three areas, the judge will allocate responsibility in whatever fashion appears to serve the best interests of the child.

It is extremely important to remember that the best interests of the child must be the focus of all discussions related to parental authority. To do otherwise levies a severe sentence upon the person a parent should be most desperately working to protect – the child.