Components of a Child Custody Order- Conservatorship/ Rights and Duties

Introduction:

Navigating the intricacies of child custody orders requires a thorough understanding of parental rights and duties to ensure the well-being of the child remains paramount. From establishing primary residence to managing educational decisions and financial matters, each aspect plays a crucial role in shaping the custody arrangement. This breakdown explores the key areas of concern, including decision-making authority, responsibilities while in possession of the child, and ongoing duties to provide essential information. By grasping these fundamental principles, co-parents can foster cooperation and effectively navigate the complexities of custody arrangements. For personalized guidance tailored to your specific situation, consulting with a family law attorney is highly recommended.

 

Conservatorship:

 

Conservatorship defines the legal rights and responsibilities of each parent regarding the child’s upbringing. This includes decision-making authority regarding education, healthcare, and other important aspects of the child’s life.

Understanding the different types of conservators—joint managing, possessory, or sole—plays a pivotal role in shaping the custody arrangement and ensuring the child’s best interests are met.

 

Under Texas Family Code 153.073, unless ordered otherwise, both parents have the following rights:

(1)  to receive information from any other conservator of the child concerning the health, education, and welfare of the child;

(2)  to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;

(3)  of access to medical, dental, psychological, and educational records of the child;

(4)  to consult with a physician, dentist, or psychologist of the child;

(5)  to consult with school officials concerning the child’s welfare and educational status, including school activities;

(6)  to attend school activities, including school lunches, performances, and field trips;

(7)  to be designated on the child’s records as a person to be notified in case of an emergency;

(8)  to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and

(9)  to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.

 

Further, unless limited by a Court, both parents have the following rights and duties during their periods of possession with the children, Texas Family Code 153.074:

1)  the duty of care, control, protection, and reasonable discipline of the child;

(2)  the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;

(3)  the right to consent for the child to medical and dental care not involving an invasive procedure;  and

(4)  the right to direct the moral and religious training of the child.

 

The rights and duties above are typically not litigated. Sometimes they are in extreme circumstances but usually both parents share equally the rights above.

 

There are rights under 153.132 which a parent can have exclusively if that parent is appointed a sole managing conservator, the rights are:

 

(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;

(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.

 

Most of the time, parents are appointed joint managing conservators in Texas which means the above rights are given to both parents. So, if a Court appoints one parent a sole managing conservator, that parent simply receives all of the above rights but if a Court appoints parents joint managing conservators then the Court must decide how to apportion the rights. Each right can be apportioned in 3 different ways:

• Give the right exclusively to one parent (yes, even if both parents are joint managing conservators);
• Award the right independently to both parents. If a court orders that both parents have the independent right to make medical decisions then each parent can make decisions without the other’s agreement;
• Award the right jointly. If a court awards a right jointly then both parents have to agree on a given decision and if there is no agreement there is usually a tie-breaker appointed so that decisions about a child are not impeded die to the parent’s not being able to agree.

 

Some of the above rights are usually awarded the same in most cases. The following is what will usually be ordered:

 

 

The Right	Typically awarded	Reasoning
(5)  the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;	Independent	This right rarely is litigated, its rarely an issue so awarding this right independently seems to be the default and is rarely contested
(6)  the right to consent to marriage and to enlistment in the armed forces of the United States;	Joint	This is typically joint so that the parent paying child support can’t consent for the child to get married or join the military, which could terminate their child support obligations
(8)  the right to the services and earnings of the child;	Independent	This right rarely is litigated, its rarely an issue so awarding this right independently seems to be the default and is rarely contested
(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	Independent	This right rarely is litigated, its rarely an issue so awarding this right independently seems to be the default and is rarely contested

 

Some rights are regularly contested and those rights with some considerations are listed below:

The Right	Information
(1)  the right to designate the primary residence of the child;	When people are “fighting for custody” this is the one right they are fighting over. The person who is awarded this right typically has the child the majority of the time and receives child support. This right is usually awarded exclusively to one parent. Under TFC 153.134(b)(1) a court shall designate this right to one parent. Parents can agree that neither parent has the exclusive right to designate the child’s primary residence in which case the order the specifies which school the child will go to. In realty the only actual application of this right is to determine where the child will go to school. Note this right is not legally connected to child support or possession, it only is as a matter of custom. There have been cases where a jury awards “primary” to a father but the court then orders a 50/50 schedule and orders dad to pay child support.
(2)  the right to consent to medical, dental, and surgical treatment involving invasive procedures;	This right is one of three that make up the “heads, eds and meds”. This is the right to make medical, dental and invasive decisions. This right is usually awarded independently if the parents get along reasonably well. It’s awarded jointly if the parents can’t make decisions together well. And it’s awarded to one parent exclusively if conflict is very high or other good cause. If awarded jointly the child’s primary care provider or treating physician is typically appointed as a tie-breaker.
(3)  the right to consent to psychiatric and psychological treatment;	This right is one of three that make up the “heads, eds and meds”. This is the right to make educational decisions. This right is usually awarded independently if the parents get along reasonably well. It’s awarded jointly if the parents can’t make decisions together well. And it’s awarded to one parent exclusively if conflict is very high or other good cause. If awarded jointly the school counsellor is typically appointed as a tie-breaker.
(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;	Sometimes this right is appointed, sometimes not. Typically, one parent is receiving child support but this right is not listed in the order. Rather, one parent is just ordered to pay child support. Typically, whoever has the exclusive right to designate the child’s primary residence will get this right.
(7)  the right to make decisions concerning the child’s education;	This right is one of three that make up the “heads, eds and meds”. This is the right to make medical, dental and invasive decisions. This right is usually awarded independently if the parents get along reasonably well. It’s awarded jointly if the parents can’t make decisions together well. And it’s awarded to one parent exclusively if conflict is very high or other good cause. If awarded jointly the child’s primary care provider or treating physician is typically appointed as a tie-breaker.
(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.	There’s not a clear precedence for this one. This right can either be independent, joint or exclusive. Some judge’s prefer giving this as an exclusive right to whoever has the exclusive right to designate the child’s primary residence. Some judge’s usually order that this right is awarded independently to both parties. Many orders don’t even contain a provision about the child support. Something I like to do is have the order give each party the independent right to apply for a passport and then order that the parent who last uses the passport can maintain it until the other parent needs it. This way there is not a “primary” passport holder.

 

 

Sample order language for section 153.073 of the family code:

 

IT IS ORDERED that, at all times, PARENT A and PARENT B, as parent joint managing conservators, shall have the following rights:

 

1. the right to receive information from any other conservator of the child concerning the health, education, and welfare of the child;

 

2. the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;

 

3. the right of access to medical, dental, psychological, and educational records of the child;

 

4. the right to consult with a physician, dentist, or psychologist of the child;

 

5. the right to consult with school officials concerning the child’s welfare and educational status, including school activities;

 

6. the right to attend school activities, including school lunches, performances, and field trips;

 

7. the right to be designated on the child’s records as a person to be notified in case of an emergency;

 

8. the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and

 

9. the right to manage the estate of the child to the extent the estate has been created by the parent’s family or by the parent, other than by the community or joint property of the parent.

 

Sample order language for section 153.076 of the family code:

 

 

IT IS ORDERED that, at all times, PARENT A and PARENT B, as parent joint managing conservators, shall each have the following duties:

 

1. the duty to inform the other conservator of the child in a timely manner of significant information concerning the health, education, and welfare of the child;

 

2. the duty to inform the other conservator of the child if the conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Texas Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter. IT IS ORDERED that notice of this information shall be provided to the other conservator of the child as soon as practicable, but not later than the fortieth day after the date the conservator of the child begins to reside with the person or on the tenth day after the date the marriage occurs, as appropriate.  IT IS ORDERED that the notice must include a description of the offense that is the basis of the person’s requirement to register as a sex offender or of the offense with which the person is charged.  WARNING:  A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE;

 

3. the duty to inform the other conservator of the child if the conservator establishes a residence with a person who the conservator knows is the subject of a final protective order sought by an individual other than the conservator that is in effect on the date the residence with the person is established. IT IS ORDERED that notice of this information shall be provided to the other conservator of the child as soon as practicable, but not later than the thirtieth day after the date the conservator establishes residence with the person who is the subject of the final protective order.  WARNING:  A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE;

 

4. the duty to inform the other conservator of the child if the conservator resides with, or allows unsupervised access to a child by, a person who is the subject of a final protective order sought by the conservator after the expiration of sixty-day period following the date the final protective order is issued. IT IS ORDERED that notice of this information shall be provided to the other conservator of the child as soon as practicable, but not later than the ninetieth day after the date the final protective order was issued.  WARNING:  A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE; and

 

5. the duty to inform the other conservator of the child if the conservator is the subject of a final protective order issued after the date of the order establishing conservatorship. IT IS ORDERED that notice of this information shall be provided to the other conservator of the child as soon as practicable, but not later than the thirtieth day after the date the final protective order was issued.  WARNING:  A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE.

 

Sample order language for section 153.074 of the family code:

IT IS ORDERED that, during their periods of possession, PARENT A and PARENT B, as parent joint managing conservators, shall have the following rights and duties:

1. the duty of care, control, protection, and reasonable discipline of the child;

 

2. the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;

 

3. the right to consent for the child to medical and dental care not involving an invasive procedure; and

 

4. the right to direct the moral and religious training of the child.

 

IT IS ORDERED that Parent A, as a parent joint managing conservator, shall have the following rights and duty:

 

1. the exclusive right to designate the primary residence of the child within Jefferson County, Texas, the counties contiguous to Jefferson County and the counties which are contiguous to the counties which are contiguous to Jefferson County.

 

2. the exclusive right to consent to medical, dental, and surgical treatment involving invasive procedures;

 

3. the exclusive right to consent to psychiatric and psychological treatment of the child;

 

4. the exclusive 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 independent right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;

 

6. the joint right to consent to marriage and to enlistment in the armed forces of the United States;

 

7. the exclusive right to make decisions concerning the child’s education;

 

8. except as provided by section 264.0111 of the Texas Family Code, the independent right to the services and earnings of the child;

 

9. except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the independent 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;

 

10. the exclusive right to apply for a passport for the child, to renew the child’s passport, and to maintain possession of the child’s passport; and

 

11. the exclusive duty to manage the estate of the child to the extent the estate has been created by the community or joint property of the parent.

 

 

Are you facing the complexities of child custody arrangements? Don’t navigate this challenging terrain alone. Seek the guidance of a qualified family law attorney who can provide personalized assistance tailored to your unique circumstances. By partnering with a legal expert, you can ensure that your rights are protected, your duties are fulfilled, and the best interests of your child remain at the forefront of the custody process. Take the first step towards clarity and peace of mind by reaching out to a trusted attorney today.