What is Joint Managing Conservatorship?
Subject to the prohibition in Section 153.004, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child. It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.
In the case of Turrubiartes v. Olvera, Immigration status, standing alone, is not probative of a parent’s fitness to be a parent to her children so as to deny her joint managing conservatorship.
In Berwick v. Wagner, only the difference between a parent and a nonparent has legal significance in determining who should be appointed sole or joint managing conservator of a child; the difference between a biological parent and a nonbiological parent does not.
In the Texas case, In re H.R.L., the Court establishes a rebuttable presumption that appointment of a parent as the sole managing conservator or both parents as joint managing conservators is in the best interest of the child. This presumption may be overcome by evidence that the appointment “would significantly impair the child’s physical health or emotional development.” Given the existence of this presumption, a nonparent will not satisfy her burden by offering evidence that she would be a better custodian of the child. The nonparent must offer evidence of specific acts or omissions of the parent that demonstrate that an award of custody to the parents would cause physical or emotional harm to the child.
What are my rights as a conservator?
Unless limited by court order, a parent appointed as sole managing conservator of a child has the rights and duties provided by Subchapter B of the Texas Family Code and the following exclusive rights:
(1) the right to designate the primary residence of the child;
(2) the right to consent to medical, dental, and surgical treatment involving invasive procedures;
(3) the right to consent to psychiatric and psychological treatment;
(4) the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
(5) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
(6) the right to consent to marriage and to enlistment in the armed forces of the United States;
(7) the right to make decisions concerning the child’s education;
(8) the right to the services and earnings of the child; and
(9) except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government; and
(10) the right to:
(A) apply for a passport for the child;
(B) renew the child’s passport; and
(C) maintain possession of the child’s passport.
What about Parenting Plan?
If a written agreed parenting plan is filed with the court, the court shall render an order appointing the parents as joint managing conservators only if the parenting plan:
(1) designates the conservator who has the exclusive right to designate the primary residence of the child and:
(A) establishes, until modified by further order, the geographic area within which the conservator shall maintain the child’s primary residence; or
(B) specifies that the conservator may designate the child’s primary residence without regard to geographic location;
(2) specifies the rights and duties of each parent regarding the child’s physical care, support, and education;
(3) includes provisions to minimize disruption of the child’s education, daily routine, and association with friends;
(4) allocates between the parents, independently, jointly, or exclusively, all of the remaining rights and duties of a parent provided by Chapter 151;
(5) is voluntarily and knowingly made by each parent and has not been repudiated by either parent at the time the order is rendered; and
(6) is in the best interest of the child.
(b) The agreed parenting plan may contain an alternative dispute resolution procedure that the parties agree to use before requesting enforcement or modification of the terms and conditions of the joint conservatorship through litigation, except in an emergency.
(c) Notwithstanding Subsection (a)(1), the court shall render an order adopting the provisions of a written agreed parenting plan appointing the parents as joint managing conservators if the parenting plan:
(1) meets all the requirements of Subsections (a)(2) through (6); and
(2) provides that the child’s primary residence shall be within a specified geographic area.
What about Court Ordered Joint Custody?
If a written agreed parenting plan is not filed with the court, the court may render an order appointing the parents joint managing conservators only if the appointment is in the best interest of the child, considering the following factors:
(1) whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators;
(2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
(3) whether each parent can encourage and accept a positive relationship between the child and the other parent;
(4) whether both parents participated in child rearing before the filing of the suit;
(5) the geographical proximity of the parents’ residences;
(6) if the child is 12 years of age or older, the child’s preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child; and
(7) any other relevant factor.
In rendering an order appointing joint managing conservators, the court shall:
(1) designate the conservator who has the exclusive right to determine the primary residence of the child and:
(A) establish, until modified by further order, a geographic area within which the conservator shall maintain the child’s primary residence; or
(B) specify that the conservator may determine the child’s primary residence without regard to geographic location;
(2) specify the rights and duties of each parent regarding the child’s physical care, support, and education;
(3) include provisions to minimize disruption of the child’s education, daily routine, and association with friends;
(4) allocate between the parents, independently, jointly, or exclusively, all of the remaining rights and duties of a parent as provided by Chapter 151; and
(5) if feasible, recommend that the parties use an alternative dispute resolution method before requesting enforcement or modification of the terms and conditions of the joint conservatorship through litigation, except in an emergency.
Regardless of what type of conservatorship the Court rules is appropriate for the circumstances of the parents, it is always important to remember that the primary goal of a judge is to always do what is in the best interest of the child.