Key Term Differences In Custody Laws
First thing to point out, there is no custody in Texas. In the lone star state, the word “custody” is replaced by the word “conservatorship” but you can think of the two, within the context of Texas, as nearly identical. Outside of Texas, conservator has a more specific meaning. As anyone following the Britney Spears situation will know, conservators are typically people charged with taking care of someone who is disabled or unable to care for themselves. We’ll cite snippets of the law so readers can see the context of how the word is used, but in Texas it’s important to know that the word most frequently refers to the custody of children.
Also note, that if you’re doing research on laws related to custody in Texas, used the word conservator in the law lookup.
What Does “Conservatorship” Mean
Now you’re really going to hate us. There are two types of conservators and one of those categories, managing conservator, is broken down into two subcategories. First, the two types of conservators:
- Managing conservator
- Possessory conservator
Alright let’s get into it. The managing conservator is further subdivided into two two categories but the word “managing” is really the part of the phrase doing the work here. Managing implies more of an active role and, though Texas courts prioritize joint custody where possible, you’ll see why this next breakdown is necessary.
Sole Managing Conservators
Sole managing conservators come into play when a person is charged with sole custody of the child. Though the courts have the right to make this call (next section) in Texas, the bar is very high to prove that this is beyond a doubt in the best interest of the child.
As such it’s really only in play when there are issues such as domestic violence, or drugs or alcohol related behavior by the other parent. Additionally, if there’s any behavior by the parent that might endanger the life of the child, sole managing conservators are in play.
Joint Managing Conservators
Joint managing conservators are the more common outcome of a custody hearing in Texas and also the more complicated. This is because the rights and duties of the child have to be divided between both parents in a way that satisfies (to some extent) all parties, especially the court.
Very important to note: “Joint” does not mean equal time.
The possessory conservators are when the courts give certain persons the right to possession in certain periods of time of the child’s life. The court will specify when and where the said person has the rights to make decisions on behalf of the child but you can think of this as someone that could be family but isn’t a parent.
Texas Courts Have Power To Award Custody
Perhaps nothing groundbreaking here, all states give courts the right to award custody but we’ll note it to show how the terminology is used in the actual law. There’s two important statutes in the law (family code Family Code § 153.005 and Family Code § 153.006) that essentially give Texas courts the power to appointment individual (or multiple) conservators for a child. Notice, a point on terminology, how Texas law uses conservator to relate to child (again not to be confused with adults).
Family Code 153.005
…the court may appoint a sole managing conservator or may appoint joint managing conservators. If the parents are or will be separated, the court shall appoint at least one managing conservator. A managing conservator must be a parent, a competent adult, an authorized agency, or a licensed child-placing agency.Family Code 153.005
When Can The Child Decide?
Huge misconception that our attorney friends wanted us to include in this page relates to when the child gets to decide. The year “12” gets thrown out quite a bit but that’s not really how it works. So at 12 the opinion and preference of the child is taken into account by the court, however it’s not until 18 when the child can definitively say which parent they want.
The reasoning here is that children, teens, and preteens can be easily persuaded by limited interactions with the parent when the parent may have issues with substances or behaviors that the court doesn’t want to tell the child about. For that reason (and others you can probably surmise), 18 is the official age at which the child can decide. Hard stop.
Does the Mother Get Custody More Often?
Prior to about 1970, mother’s across the country would typically be awarded full custody (in the rare event a custody hearing even took place) of the child. Now Texas laws do quite a bit of work to remain neutral in custody (or conservator hearings). For example, Texas law now uses the neutral word parent when referring to the conservator, instead of just assuming it’s a mother.
Recent Bills Related To Custody
As there are dozens of bills each session that relate to amendments and improvements (and correcting loopholes) to Texas’ custody laws, we’ll just select a few from the most recent session that caught our eye. Of the major bills that did pass we’ll have a full breakdown of in the Recent Bills section of the website.
An attempt to rectify laws related to same-sex marriage: HB 1037
As we’ve discussed on other pages, Texas’ relationship with same-sex marriage has been tricky to say the least. Enter Rep. Ann Johnson of Houston. An openly gay Texas representative (never thought we’d be able to say that) who married her wife and artist, Sonya Cuellar, as soon as it was legal to do so, proposed a variety of bills that would close loopholes related to over criminalizing same-sex marriage. The Romeo and Juliet laws, that we’ve discussed in the past, are one such example.
|Relating to certain statutory changes to reflect and address same-sex marriages and parenting relationships and to the removal of provisions regarding the criminality or unacceptability of homosexual conduct.
Conservatorship Loopholes And Covid-19: H.B. 1135
In the midst of Covid-19 pandemic, it became clear that there was a loophole relating to when a joint managing conservator is required to drop-off a child when they attend home school or if they attend school virtually. Essentially, drop-off and pickup from school is a very obvious way for joint managing conservators to perform their duties and relinquish possession of the child.
For one, it is Texas law that a child attend school (so the child must be present). Additionally drop off and pickup from school for two divorced parents provides a great way to non confrontationally continue to perform their roles as parents.
However loopholes were realized when it became apparent that existing laws that were in place did not cover what happens when school is being conducted remotely (as all schools were during the Covid-19 pandemic) or when children are being homeschooled (something more common in Texas than other states).
Christina Morales, district 145, attempted to solve these issues with H.B. 1135. The bill, which seemed like a no brainer at the time, was filed on January 15th, 2021. It would not make it out of the house committee until April 6, 2021 when it passed the committee Juvenile Justice & Family Issues with a unanimous vote. The bill then proceeded to the Senate committee on State Affairs where it, again, passed out of committee on unanimous vote from the committee. Unfortunately, the bill was never voted on by the Senate as the session would end before the senate could do so. Read the full bill stages here.
Historical Changes to Custody Laws
We’ll document historical changes to the law in terms of state bills regarding custody.
Written Notice for Conservators that Live 100 Miles Apart: HB 553
A 2019 bill dealt with communication between the two conservators: that, for parents who reside 100 or less miles apart and for weekends designated during the summer, a possessor conservator must give written notice to the managing conservator of the location at which the managing conservator is to pick up and return a child.
Sole Managing Conservators Can Renew Passports: HB 555
A 2019 bill that allowed the “the sole managing conservator of a child has the right to apply for, renew, and possess a child’s passport.”