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Know the Laws: Texas

UPDATED October 16, 2012

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WomensLaw.org strongly recommends that you get help from an organization in your area before proceeding with court action.  Go to our TX Where to Find Help page for a listing of organizations and legal services in Texas.

For additional information and for self-help resources, you can visit: TexasLawHelp.org or Texas Courts Online.

General info & definitions - custody

back to topWhat is conservatorship (custody)? What types are there?

In Texas, custody is called “conservatorship.”  Conservatorship is used to describe the legal rights and responsibilities of a parent.  A judge may give conservatorship to one or both parents.

There are two types of conservatorship in Texas:

  • sole managing conservatorship
  • joint managing conservatorship.*
Generally, conservatorship (custody) includes the right to:
  • Get information from the other parent of the child about the health, education, and welfare of the child;
  • Have access to medical, dental, psychological, and educational records of the child;
  • Talk to a physician, dentist, or psychologist about the child;
  • Talk to school officials concerning the child's welfare and educational status, including school activities; and
  • Consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child.**
* Tex. Fam. Code §153.005(a)
** Tex. Fam. Code § 153.073(a)

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back to topWhat is sole managing conservatorship (SMC)?

Sole managing conservatorship (SMC) means you are the only parent with the legal right to make certain decisions concerning your child. If you are granted SMC, you have the general rights given to a conservator and you are the only parent who has rights such as:

  • decide the primary (main) residence of the child;
  • consent to medical, dental, and surgical treatment involving invasive procedures;
  • consent to psychiatric and psychological treatment;
  • receive child support; and
  • make decisions concerning the child's education. *
There are several reasons why a judge might grant one parent sole managing conservatorship:
  • The other parent has a history of family violence, neglect.
  • The other parent has a history of drugs, alcohol or other criminal activity.
  • The other parent has been absent from the child’s life.
  • There is a history of extreme conflict between the parents over educational, medical and religious values.
  • One parent does not want joint managing conservatorship. **
* Tex. Fam. Code §153.132
**The Texas Young Lawyer’s Association, What to Expect in Texas Family Law Court, (2010)

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back to topWhat is joint managing conservatorship (JMC)?

Joint managing conservatorship (JMC) is when the rights and duties of a parent are shared by both parties. However, exclusive right to make certain decisions (like where the child lives) may be awarded to one party.*

JMC can be established either by an agreement from the parents or a court order. If the parents come to an agreement about sharing managing conservatorship, the agreement must be approved by a judge.*1

When making a decision about JMC, the judge will consider what is in the best interest of the child, which includes:

  • whether the physical, psychological, or emotional needs and development of the child will benefit from joint managing conservators;
  • 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;
  • whether each parent can encourage and accept a positive relationship between the child and the other parent;
  • whether both parents participated in child upbringing before the filing of the suit;
  • the geographical closeness of the parents' residences;
  • 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 decide where the child will live; and
  • any other relevant factor.*2
If both parents are made conservators, the judge will specify the responsibilities each parent has separately and jointly.*3

Even if the judge grants joint managing conservatorship, s/he may still make one parent the primary joint managing conservator, also known as the “custodial parent”. The custodial parent has the right to determine the primary (main) residence of the child. All other decisions are made by both parents.*4

Note: When a judge makes both parents joint managing conservators it does not mean that each parent will necessarily get equal or nearly equal possession of and access to the child.*5

* Tex. Fam. Code §101.016
*1 Tex. Fam. Code § 153.133
*2 Tex. Fam. Code § 153.134(a)
*3 Tex. Fam. Code § 153.071
*4 The Texas Young Lawyer’s Association, What to Expect in Texas Family Law Court, (2010)
*5 Tex. Fam. Code §153.135

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back to topWhat is arbitration?

During a custody suit, the parties may be able to go to arbitration to help them come to an agreement about conservatorship and possession.  Arbitration means a neutral third party, called an arbitrator, will be present at the custody proceeding instead of a judge. The parties can decide whether the arbitration is binding (legally enforceable) or not.  In binding arbitration, once an agreement is finalized it is made official unless the judge believes it is not in the best interest of the child.*

* Tex. Fam. Code §153.0071(a)-(b)

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back to topWhat is mediation?

Mediation is a process where parents can come to an agreement about conservatorship and possession of their child without going in front of a judge.  A third party, called a mediator, meets with the parents to help them get to a mutual agreement.  Parents may agree to mediation or a court may order mediation.

Once an agreement is reached, it will be binding on all parties if the agreement:

  • Has stated in boldfaced type, capital letters or underlined, that it is not “subject to revocation” (meaning it cannot be reversed or undone);
  • Is signed by the parties;
  • Is signed by the parties’ attorneys if present when the parties sign the agreement.
However, a court will not accept an agreement made through mediation if one of the parties is a victim of family violence and this impaired his/her ability to make decisions and the agreement is not in the child’s best interest.

If you are a victim of family violence, you can ask the judge not to refer the case to mediation. Usually, the judge will grant the request, unless the other party disagrees and asks for a hearing to determine whether or not mediation is appropriate.  After the hearing, if the judge refers the case to mediation anyway, measures will be taken to protect the party who did not want mediation.  For example, the judge may order separate rooms and no face-to-face contact during mediation.*

* Tex. Fam. Code § 153.0071(c)-(f)

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back to topWhat is a parenting plan?

A parenting plan contains the rights and responsibilities of the legal parent/s of a child, including a schedule for possession and access to the child and child support information.*  Parents can make a parenting plan and submit it to the court.  If a judge finds that it is in the best interest of the child, s/he will order the use of that parenting plan. Otherwise, the judge can order a parenting plan s/he believes is appropriate.**  A parenting plan is required once a final order about conservatorship and possession of and access to the child is determined.***

* Tex. Fam. Code § 153.601(4)
** Tex. Fam. Code § 153.007
*** Tex. Fam. Code §153.603

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back to topWhat is a parenting coordinator?

A parenting coordinator is a third party that helps the parties come to an agreement about parenting issues.*  A judge may assign someone to a case if the parents or persons acting in the capacity of parents cannot come to an agreement about parenting issues.  You do not need to wait for the judge to assign a parenting coordinator; you can request one if you think it would help.

Generally, a judge will order a parenting coordinator only if the parties have repeatedly brought legal action against one another and have trouble communicating with one another.

If you do not want a parenting coordinator to get involved because there has been a history of family violence against you or your child, you can make a written objection to the judge.  A hearing will be held if the other parent still wants to have a parenting coordinator involved.  After the hearing, if the judge decides to appoint a parenting coordinator, the judge must take precautions to protect you from emotional and/or physical harm.  For example, you might be placed in a separate room from the abuser when you meet with a parenting coordinator.**

There is a fee to meet with the parenting coordinator.  The payment is shared by both parties.  If the parties cannot pay the fee, the judge may be able to find a volunteer to act as a parenting coordinator.***

* Tex. Fam. Code § 153.601(3)
** Tex. Fam. Code § 153.605
*** Tex. Fam. Code § 153.609

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back to topWhat is a parent education and family stabilization course?

A parent education and family stabilization course is designed to help parents and children dealing with divorce.  In a proceeding to determine conservatorship or possession of or access to a child, the judge may order the parents to attend the course if s/he determines that it is in the best interest of the child.

There is a fee of no more than $100.  If the parties cannot afford the fee, there may be able to find courses that are free or offered on a sliding fee scale.  A parent can complete the course by personal instruction, videotape instruction, or through electronic communication.  Courses may also be available in Spanish.  For information on course locations, contact the county clerk.  See TX Courthouse Locations for contact information for the county clerk near you.

If a judge orders the parties to attend a course and they do not, they can be held in contempt of court.

Note: If you have been a victim of family violence, you can ask the judge to place you in a separate class from the other parent.*

* Tex. Fam. Code § 105.009

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WomensLaw.org thanks Tracy Grinstead-Everly, JD, Policy Manager at the Texas Council on Family Violence for her help in revising this information.

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