All too often, people throw around phrases about child custody and mean very different things by those phrases.
“I want full custody of my child.”
What, exactly, does that mean? Fortunately, in Texas child custody disputes, we have much more precise language than simply “full custody” or “joint custody”.
For starters, we have to make a distinction between two concepts: conservatorship and possession.
Conservatorship refers to the rights of one person to make decisions on behalf of another due to a legal incapacity. Under Texas law, when we speak of conservatorship, we are usually referring to the right of an adult (the conservator) to make decisions on behalf of a child. Children, of course, do not have the right to legally make decisions on their own behalf until they reach the age of majority or are otherwise emancipated. By default, parents have the right to act as conservators for their children. What happens, however, when those parents split up or divorce?
Generally, under Texas law, it is presumed to be in a child’s best interests that parents of that child be named Joint Managing Conservators. In short, this means that the parents, to some degree, share in the responsibility of making decisions on behalf of their children for matters such as the education, medical care and management of the child’s finances. The vast majority of child custody orders name the parents as Joint Managing Conservators.
The alternative to Joint Managing Conservatorship is called Sole Managing Conservatorship. When a parent is named as a Sole Managing Conservator, it means that parent has the sole right to make decisions on behalf of the child. The other parent would be named a Possessory Conservator, which means that they make no decisions concerning the child. Instead, a Possessory Conservator generally only has rights to possession of the child pursuant to a possession order and the right to receive information about the child’s wellbeing. It is uncommon for a parent to be named a Possessory Conservator instead of a Managing Conservator. Generally, the burden of overcoming the presumption of Joint Managing Conservatorship being in the child’s best interest is a difficult hurdle to overcome. Often, parents who have been named Possessory Conservators have demonstrated a substantial lack of good judgment in some fashion.
When a parent says they want “full custody”, do they mean that they want Sole Managing Conservatorship? Sometimes. In other instances, they may mean that they want to deny the other parent any form of possession.
Possession and access of a child refers to the superior right to have physical possession of the child. Obviously if two parents of a child have split up or divorced, they cannot reasonably have possession of a child at the same time. Instead, some form of order must be entered in order to determine who will have possession of the child, and when that possession will occur.
Is it possible for a parent to be denied any access to a child whatsoever? It is extraordinarily rare. The circumstances which would give rise to a court denying any and all access of a parent to a child are usually the same circumstances which would give rise to potential termination of a person’s parental rights. Because parental rights in Texas are considered to be a fundamental right, it takes an extraordinary set of circumstances to arrive at this point. For example, if a parent abandons a child without the intent to return, that may give rise to a denial of a right to possession. Other instances may include physical or sexual abuse of a child, placing the child in physical danger, or causing the death of another child or of the child’s other parent. Obviously, all of these are very extreme situations. This, however, demonstrates how difficult it is to completely deny a parent possession of a child.
Other measures may be taken in order to protect a child from a parent that has more moderate problems, such as alcoholism, a problem with drug abuse or a mental health issue that is not easily controlled through therapy or medication. For instance, the times and conditions of possession may be restricted. Supervised visitation is often used in instances where the parent may pose a danger to the child’s physical or emotional wellbeing if left alone with the child.
When a parent says they want “full custody”, that leaves the door open to a myriad of interpretations. By examining that parent’s concerns and getting to the root of the issue, we can generally suggest and advocate for conditions and restrictions that can protect the child and provide the parent with the peace of mind they desire.
If you have further questions about child custody issues, please contact our Houston child custody attorney, Bobby L. Warren, at 713-579-9702.
