In Texas courts, the legal word for child custody is “conservatorship.” You may already be familiar with the term as it’s recently been in trending news regarding Britney Spears and her father. A conservatorship is established by court order and appoints a conservator or conservators of child custody.
What kinds of conservators exist?
There are three types of conservators:
- Joint managing
- Sole managing
Joint managing conservatorship means that both parents are involved in decision-making for the child, such as education, child, and medical support. It does not mean that both parents split joint custody. A possession order is what establishes custodial parenthood.
Note: joint managing conservatorship is not recommended if there is a history of violence with one parent against the other.
Sole managing conservatorship means that only one parent makes decisions regarding the child and is established “for good reason” determined by the court.
Reasons why a court might establish sole managing conservatorship:
- Alcohol or drug abuse
- Child abuse or neglect
- Parental absence
- Spousal or family violence*
Possessory conservatorship means that the parent can care for the child but does not have the final say in decision-making. Typically the non-possessory parent will be the sole managing conservator while the other parent is made possessory conservator.
*According to Texas Family Code 153.004 and 153.005, a history of violence must be considered when determining conservatorship.
What are my legal rights as a father in Texas?
Mothers and fathers have the same legal rights under Texas law. The Equal Rights Amendment in 1973 made gender preference illegal in Texas courts. However, the court determines child custody rights based on what is best for the overall welfare of the child.
What is “best for the overall welfare of the child” is determined by a number of factors that include the evidence and data presented to the court. For example, if the father is loving and nurturing, the court would take this into consideration.
Other influences include the mental and physical health of the parent, the level of involvement in the child’s life, and the quality of life provided to the child.
Are there different rights for unmarried and married fathers?
Married parents automatically receive legal parenthood rights. Unmarried fathers need to take extra steps to establish paternity.
How is paternity established?
There are three paths to determine paternity:
- Agreed paternity order
- Court-ordered paternity
- Voluntary paternity establishment
Agreed paternity orders mean that both parents agree on who the father is. The parents and the judge sign a legal document of paternity that also establishes custody rights, such as child and medical support, custody, and visitation rights.
Agreed paternity orders can be signed without any assistance or with the help of a San Antonio child custody attorney or the Child Support Division (CSD).
Court Ordered Paternity
Court-ordered paternity orders occur when the alleged parents do not agree on paternity. Like agreed-upon paternity orders, the parents and judge sign a legal document that also determines custody rights like agreed paternity orders.
Court-ordered paternity orders can be requested by a San Antonio child custody attorney or the Child Support Division (CSD).
Voluntary paternity establishments are the most common way to establish paternity. Both parents volunteer to establish paternity by signing an Acknowledgment of Paternity (AOP). However, the document only establishes paternity and does not include legal custody rights over the child.
AOPs can be signed any time before or after the child’s birth with the help of a certified AOP provider (and with proper ID).
After paternity is established, what are the first steps I should take?
Before bringing matters to the court, a parental discussion of the child’s welfare is recommended. Child custody proceedings go much more easily when both parents agree upon the terms.
In fact, if an agreement can be reached regarding all the necessary determining factors (paternity, child/medical support, and visitation) and all the necessary documents and establish order without going to court. Mediation can be helped along with the help of a San Antonio lawyer who is familiar with state custody rights.
Will the child’s opinion be taken into consideration?
Many factors, including the child’s opinion, are taken into consideration by the court. Texas law requires an interview of any child 12 or older in order to hear their opinion on custody options. According to Section 154.004 of the Texas Family Code, the court must select the primary residence where the “best interests of the child” are available.
After the interview, courts establish what is in the child’s best interest. Maturity and age help determine the weight of the child’s wishes in establishing the best custody choice.
Note that a child’s best interest may differ from what the child feels is best. For example, if the child prefers to stay with his/her father but the father travels 75% of the time for work, the child’s best interest may not be to stay with the father (unless work circumstances change).
When do courts give the father sole custody?
It’s important to bear in mind that Texas courts begin their assessment favoring joint custody as a starting point. Sole custody is usually avoided unless a parent is unfit or has a history of violent or negligent behavior. Typically, the child will primarily reside in one parent’s custody, and with each parent for at least 35% of the time.
We represent clients in both contested and uncontested family law cases and our attorneys have experience with virtually every variation of San Antonio family law. Call us at 210.598.6681 today or schedule online for your free consultation.