Conservatorship Flashcards
What is Conservatorship?
- It is allocation of rights and duties over a child.
- Decision-making rights are allcated based on the type of conservatorship the court awards.
Types of Conservatorship
TWO TYPES OF CONSERVATORSHIP
* Joint Managing Conservatorship or
* Sole Managing Conservatorshipsometimes calledManaging Conservatorship
* If JMC is awarded one person could be named the “primary conservator” while the other person could be named the “Possessory Conservator” or PC.
* IfSMC or MC is awardedthe court may or may not name aPossessoryConservator.
SAPCR: Conservatorship
* Texas Public Policy, Tex. Fam. Code 153.001
-Children will have frequent and continuing contact with parents who act in the child’s best interest;
-Provide a safe, stable, nonviolent environment for child; and
-Encourage parents to share in rights and duties of raising child.
- Rights of possession or access cannot be conditioned on payment of child support.
- If no order of conservatorship, both parents have EQUAL rights to the child, no one has superior rights.
Standards to Apply in Consevatorship Cases
- Original
-Parents– Best Interest.
-Non-parents—Parental Presumption. - Modification Grounds (no parental presumption, everyone is on equal footing)
-Circumstances of child, conservator or other party have materially and substantially changed since last order;
-Child is at least 12 and prefers to live with other parent; or
-Conservator with exclusive right has voluntarily relinquished care and possession to another for at least 6 months. - Guiding principle—Best Interest of the Child Tex. Fam. Code 153.002
Rights and Duties at All Time
Sec. 153.073. RIGHTS OF PARENT AT ALL TIMES. (a) Unless limited by court order, a parent appointed as a conservator of a child has at all times the right:
(1) to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
(2) to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
(3) of access to medical, dental, psychological, and educational records of the child;
(4) to consult with a physician, dentist, or psychologist of the child;
(5) to consult with school officials concerning the child’s welfare and educational status, including school activities;
(6) to attend school activities;
(7) to be designated on the child’s records as a person to be notified in case of an emergency;
(8) to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
(9) to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.
(b) The court shall specify in the order the rights that a parent retains at all times.
Possession Schedule
Tex. Fam. Code §153.3101 et. seq.
- A.k.a., visitation. Parents can agree to any type of visitation, but if no agreement, then Standard Possession Order (“SPO”) is considered the default. SPO can be found in Tex. Fam. Code Subchapter F (starting with §153.3101 et. Seq.)
- SPO is presumed to be in the best interest of a child. Tex. Fam. Code §153.252
- Child over 3 years of age. Tex. Fam. Code §153.254; Prospective Orders (d)
- Includes holiday schedules. Tex. Fam. Code §153.314; .315
- Depends on where parents live in relation to child. Tex. Fam. Code §153.312 or .313
- Alternate Start and End Times now included if parents live within 50 miles of each other. Tex. Fam. Code 153.3171
- Custom possession order if no SPO. Tex. Fam. Code §153.253
- Court can deny possession/access all together. **Tex. Fam. Code §153.193 **
- Electronic Communication Tex. Fam. Code §153.015
JMC (Allocation among Conservators)
- Presumed, can be refuted. **Tex. Fam. Code §153.131 (b) **
-Domestic Violence 153.004(b)(Flips presumption) - If original suit, parental presumption applies.
- Basically, equal rights and duties, can establish exclusive rights. If one party is named primary JMC, the other party will be granted possession and access if it is in the best interest of the child
- Determine primary residence
-Geographical restrictions - Obtain/maintain passports
- But see Tex. Fam. Code §153.004(d)
SMC (No Allocation)
Tex. Fam. Code §153.132
- If court finds that JMC is not in the best interest of the child, it will order SMC and may or may not grant the other parent [person] Possessory Conservatorship.
- Parental Presumption in original suits.
- SMC essentially gives you exclusive rights over the child.
Rights and Duties of Parents Subject to Allocation by Court
In JMC a conservator can have Exclusive Rights, Independent Rights, or Joint Rights (requires consultation) with regard to the following:
1. Right to have physical possession to direct the moral and religious training, and to designate the residence of the child;
2. Duty of care, control, protection, and reasonable discipline of a child;
3. Duty to support the child including providing the child with clothing, food, shelter, medical and dental care, and education;
4. Duty, except when a guardian of the child’s estate has been appointed, to manage the estate of the child, including the right as an agent of the child to act in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government;
5. Except as provided by §264.0111, the right to the services and earnings of the child;
6. Right to consent to the child’s marriage, enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological, and surgical treatment;
7. Right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
8. Right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;
9. Right to inherit from and through the child;
10. Right to make decisions concerning the child’s education; and
11. Any other right or duty existing between a parent and child by virtue of law
Rights and Duties During Period of Possession
- Duty of care, control, protection, and reasonable discipline of a child;*
- Duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
- Right to consent for the child to medical and dental care not involving an invasive procedure; and
- Right to direct the moral and religious training of the child.
* Only a parent, grandparent, stepparent with rights/duty, and guardian of child with rights/duty may use corporal punishment for the reasonable discipline of a child.
Standard Possession
Within 100 Miles
TFC 153.312
1. Every Thursday 6p-8p
2. 1,3,5 Fridays 6p-Sunday 6p
3. Spring Break even-PC. 6p school ends to 6p day before school resumes. Flips odd.
4. Summers w/notice by April 1
-30 days in no more than 2 periods of no less than 7 days at a time. Any time after last day of school and 7 days before school starts.
-MC can carve out some days
Summers no notice
5. 30 days from July 1-31
Standard Possession
More than 100 Miles
TFC 153.313
1. Every Thursday 6p-8p
2. 1,3,5 Fridays 6p-Sundays 6p
3. Spring Break PC every year
4. Summers w/notice by April 1
-42 days in no more than 2 periods of no less than 7 days at a time. Any time after last day of school and 7 days before school starts.
-MC can carve out some days
Summers no notice
5. 42 days from 6p June 15-6p July 27
Additional Holidays, Distance not Relevant
(TFC 153.314)
- Thanksgiving
-Even years: MCentire school holiday. Flips in odd years.
-Odd years: PC entire school holiday. - Christmas
-Even years: PC 6 p.m. last day of school through noon on Dec. 28/ MC noon Dec. 28 through Start of school.
-Odd years: MC 6 p.m. last day of school through noon on Dec. 28 then PC gets noon Dec. 28th through start of school. - Child’s birthday
-Parent not in possession of child on child’s birthday shall have possession on the child’s birthday beginning at 6 p.m. and ending at 8 p.m. - Mother’s Day
-Mother shall have possession of child beginning at 6 p.m. on the Friday before Mother’s Day and ending at 6 p.m. on Mother’s Day. - Father’s Day
-Father shall have possession of child beginning at6 p.m. on the Friday before Father’s Day and ending at 6 p.m. on Father’s Day.
Alternate Visitation Start and End Time
Parents may elect an alternate start time for visitation.
* For weekends during the regular school term, visitation will commence at the time the child is dismissed from school and end at time child’s school resumes after the weekend
* For Thursday visits during the school year beginning at the time school is regularly dismissed and ending at time children’s school resumes on Friday.
* For Spring Break—at time school is dismissed for holiday
* For Thanksgiving—at time school is dismissed for holiday
* For Father’s Day-ends at 8 a.m. on Monday following.
* For Mother’s Day-start when school is dismissed, or end at time school resumes on the Monday following (not both).
If parents live within 50 miles of each other, no election is necessary, court shall alter SPO to comply with alternate start and end times.
Parenting Plan
- Refers to the provisions in a court order that sets out the rights and duties of a parent, provides for periods of possession and of access to a child, provide for support of the child, and optimizes the development of a close and continuing relationship between each parent and child.
- Are required in final SAPCR Conservatorship orders
- Can include Loving and Caring Order as part of parenting plan.
- Can include Children’s Bill of Rights as part of parenting plan.
