Home‎ > ‎How a Texas Divorce Works‎ > ‎

Child Conservatorship, Possession & Access

The laws in many states talk about "child custody" and so that is a popular term. Child custody deals with how decisions are going to be made regarding the children and who is going to make them. It also addresses where the children will live and how their parents will share time with the children.
 
In Texas, we do not talk about "child custody" but instead we use two different terms that address different aspects of custody, Conservatorship and Possession & Access.
 
  1. Conservatorship. The first decision the court must make is how will decisions affecting the children be made and who will make them.

  2. Possession & Access. The next decision the court must make is where the children will live and how the parents will share time with the children.
These two issues together are the most hotly contested and ferosiously litigated aspects of many divorce suits.
 

Conservatorship

The state legislature has instructed the courts to assume that Joint Managing Conservatorship is in the best interest of the children. To make that policy clear, the legislature has also instructed the courts that if the court is not going to appoint both parents as joint managing conservators, then one of the parents must present clear and convincing evidence that joint managing conservatorship is not in the children's best interest.

That is a high burden of proof to meet. It's often clear that there is conflict between the parents that makes joint decision making difficult, but that's not enough for the court to overturn the legislature's instructions. It's also often clear that one parent is much better at or involved in making decisions for the children. But that's not enough either. Cases where the court orders Sole Managing Conservatorshp, which is the alternative to Joint Managing Conservatorship, are cases where the acrimony and conflict between the parents is so high, that decisions are nearly impossible to make and as a result the children's best interest is compromised.
 
The legislature has also provided a detailed list of rights and duties for conservators (usually parents). That gives the court considerable flexibility in deciding conservatorship issues. For example, the court might order that the parents are appointed Joint Managing Conservators of the children with each parent having independent rights and duties, except that perhaps only one parent would be granted the exclusive right to make educational decisions for the children. This ability to fine-tune the distribution of rights and duties between parents means that for most cases, it is pointless to try to convince the court to order an arrangement other than Joint Managing Conservatorship. Instead, in most cases, energy should be focused on the allocation of rights and duties between joint managing conservators.
 
The list of rights and duties that the court can allocate are describe in detail in one of Tom Daley's blog posts and on our "Top 6 Issues" page.
 
The lessons to learn here are (1) Joint Managing Conservatorship is by far the most likely outcome in your child custody dispute; and (2) you are better off spending your energy deciding how individual rights and duties will be allocated than arguing for sole managing conservatorship in most--but not all--cases.
 

Possession & Access

A person who has the right to possess the children means just what it says--that person has the right to take the children, for a specific period of time, sometimes bounded within a specific geographic area, and spend time with them. A person who has abused, abandoned, or in some way harmed or threatened the well-being of the children might be required to have his or her possession time continuously supervised by another person.
 
Access is more limited than possession. Access can be as little as a 15-minute phone call once a year on the child's birthday. If all you have is the right of access (which is all most grandparents have the ability to request from the court), you will probably not ever spend any time with the child.
 
Most parents share possession and access between them according to the terms of the Standard Possession Order, which is fully described in one of Tom Daley's blog posts.
 
The state legislature has told the courts that every possession order must provide that parents can share the children however the parents want to, as long as they can agree. The possession order only controls those periods of time when the parents cannot otherwise agree. People split up for a lot of reasons, but a common factor is their mutual inability to make reach agreed decisions together. Therefore, most parents closely follow the terms of the possession order.
 

Relationship Between Child Support and Possession & Access

The short answer is that there is no relationship at all between these rights and duties. A parent who never gets to see his or her children must still pay court-ordered child support. A parent who never pays court-ordered child support gets nonetheless has the absolute right to spend time with the children according to the terms of the possession schedule laid out in the final order.
 
Put differently:
 
  1. You CANNOT withhold child support because the other parent won't let you see the children. The proper way to address this is through a motion to enforce the possession schedule. The Office of Attorney General does not enforce possession and access rights.

  2. You CANNOT prevent the other parent from spending time with the child just because he or she is not paying child support. The proper way to address this is through a motion to enforce child support, which can be filed by the Office of the Attorney General (OAG) or a private attorney.