Conservatorship

Texas refers to a person with a custody-based relationship as “conservators”. Conservators are generally the parents, but a conservator can be a grand-parent, sibling, or any person or agency with physical possession of a child. As used herein, conservator and parent are interchangable.

Conservatorship or custody comes in two primary forms: Joint Managing and Sole Managing. However, these terms are not as intuitive as you might imagine at first glance because “conservatorship” refers to decision power not physical possession.

In other words; Joint Managing Conservatorship effectively gives two or more conservators equal rights, duties, and decision power. Sole Managing Conservatorship (SMC) effectively gives all the decision power to one conservator and may redistribute rights and duites. Powers, rights and duties that are assigned include:

The right attend school functions;

Major medical decisions;

Educational/school decisions;

The right to information regarding the child’s health, education and welfare;

The right to consult with the other parent before making a decision related to the child;

The right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child; and

The right to consent to marriage and to enlistment in the armed forces of the United States.

Joint Managing Conservatorship is presumed to be in the best interest of a child. In fact the law is implicit and public policy requires the Court to appoint parties joint managing conservators when it is shown that both parties are capable and do act in such a manner as to provide a safe environment for the child. Accordingly, if parents are JMC, they each share equally the rights and duties of raising the child even after the divorce. There are two exceptions – one parent must designate the residence where the child will live most of the time, and that same parent generally decides how the child support the other parent pays will be spent. The parent conservator with these two additional rights is called the Primary Conservator (sometimes called the “custodial parent”). The non-custodial parent is the Possessory Conservator and will have possession of the child during designated periods of visitation.

Sole Managing Conservatorship (SMC) is reserved for those situations where one parent has so affected the life of the child that appointing him or her as a joint managing conservator would not be in the best interest of the child.  Generally, if SMC is awarded, the non-custodial parent has no decision making power and may or may not have visitation rights. SMC is NOT “sole custody” as most people think of it, SMC refers to decision power and rights, though as a more practical matter, when the Court deems it necessary to appoint one parent as Sole Managing Conservator, the Court usually restricts the “Possessory Conservator’s” access to the child.

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