Conservatorship Flashcards
Conservators: Generally
A parent awarded primary possession of a child is called the sole managing conservator (MC) and a parent aware only visitation rights is called a possessory conservator (PC).
If the parents are awarded joint possession, they re called joint managing conservators (JMC). However, one of the JMC’s homes will usually be designated as the child’s primary residence; JMC does not require equal possession. The parents are entitled to a jury trial on the conservatorship issue and the jury’s verdict is binding on a court.
Conservators: BIC Test
In determining conservatorship, a court’s “primary consideration” is the BIC:
1) Presumption that parent is appointed managing conservator
A court must appoint a parent (or both) as managing conservators unless doing so would “significantly impair the child’s physical health or emotional development.” There is a rebuttable presumption that appointing the parents as JMC is in the BIC, but presumption is removed if there is a history of family violence.
2) Written Agreement of Parties
If the parties enter into a written custody and support agreement, a court must appoint the MC designated by the parties, unless the court determines it is not in the BIC.
If the parties do not come to a parenting agreement, a court may appoint JMCs after considering the following factors:
i) physical, psychological, and emotional needs of child
ii) ability to reach shared decisions
iii) whether it would encourage a positive relationship and whether each parent previously held responsibility in the child rearing
iv) preference of child over age 12; and
v) proximity of the parties’ homes
Note: TX no longer requires written designation from a child over 12 regarding preferences on who to live with, the child may state preferences in chambers though.
3) Strong preference to keep siblings together
When 2 or more children from same marriage, strong preference against split custody. However, BIC trumps this.
4) No gender or marital status discrimination
According to statute, court may not factor in the parties’ sex or marital status in their decision.
5) Other court-developed factors
Because the statute is vague in defining “BIC” the courts have provided factors to consider including:
i) Child’s desires
ii) Parental abilities of individuals seeking custody
iii) Child’s present and future emotional/physical needs
iv) Emotional/physical danger to child now and in future
v) stability of proposed home environment
vi) programs available to assist the individuals seeking custody to promote BIC
vii) individual’s plans and opportunities for child
viii) acts or admissions by a parent showing he is less fit than the other parent, and any excuses of those acts/and or omissions of the parent
6) History of family violence or sexual abuse
A court may not allow a parent access to a child if it is shown by preponderance of the evidence that he parent has a “history or pattern of committing family violence during the two years preceding” the filing of the suit. The court must terminate parental rights if it find by C&C that a parent engaged in conduct constituting a sexual offense under the Penal code that resulted in the victim becoming pronging with parent’s child, and termination is in BIC.
Conservators: Rights and Duties
1) Generally
A parent appointed as a conservator has the following rights and duties when in actual possession of a child, unless limited by the court:
i) The duty of care, control, protection, & reasonable discipline of child
ii) The duty to support the child, including providing clothing, food, shelter, and medical/dental care, not including invasive procedures
iii) The right to consent of the child to medical/dental care not involving invasive procedures
iv) the right to direct the child’s moral and religious training
At all times–whether in possession of child or not–a parent appointed as a conservator has the following rights, unless limited by a court:
i) To receive information from any other conservator of the child concerning the child’s health, education, and welfare
ii) To confer with the other parent to the extent possible before making a decision concerning the child’s health, education, or welfare
iii) Access to the child’s medical, dental, psychological, and educational records
iv) to consult with child’s physician, dentist, or psychologist;
v) to consult with school officials concerning the child’s welfare and educational status, including school activities;
vi) to attend school activities;
vii) to be designated on the child’s records as person to be notified in case of an emergency;
viii) to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the child’s health and safety; and
ix) To manage the child’s estate to the extent the estate has been created by the parent or the parent’s family
Conservators: Rights and Duties - Nonparent Managing Conservator
A nonparent MC has the same rights and duties as a parent MC, as well as:
i) The right to designate the child’s primary residence and to make decision regarding child’s education
ii) If the parent-child relationship has been terminated with respect to the parents or only living parent, or if there is no living parent, the right to consent to child’s adoption and to make other decisions concerning child that a parent could make
Conservators: Rights and Duties - Sole Managing Conservator
A SMC has the following EXCLUSIVE rights:
i) the right to designate the child’s primary residence
ii) right to consent to medical, dental, ans surgical treatment including invasive
iii) right to consent to psychiatric and psychological treatment
iv) right to receive and give receipt of periodic child support payments and to hold or disburse these funds for child’s benefit
v) right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child
vi) right to consent to marriage or enlistment in military
vii) right to make decisions about education
viii) right to child’s services and earnings; and
ix) except when a guardian of child’s estate has been appointed, right to act as child’s agent in relation ho child’s estate if child’s action is required by a state, US, or foreign government
Conservators: Rights and Duties - Joint Managing Conservatorship
When the parents file a written agreed parenting plan with the court, the court shall render an order appointing the parents as JMCs only if the parenting plan:
i) designates the conservator who has exclusive right tot determine primary residence; establishes geographic area in which conservator shall maintain child’s residence; or specifies that the conservator designate the child’s primary residence w/o regard to geographic location
ii) specifies rights and duties of each parent regarding physical care, support, edu
iii) includes provisions to minmize disruption of the child’s education, daily routine, and association w/ friends
iv) allocates between the parents, independently, jointly, or exclusively all of the remaining rights and duties of a parent
v) is voluntarily and knowingly me by each parent and has not been repudiated by either parent at the time the order is rendered; and
vi) is in BIC
Conservators: Rights and Duties - Relationship w/ Registered Sex Offender
If a conservator resides with for at least 30 days, marries, or intends to marry a person she knows is a registered sex offender (or a person currently charged with an offense that would require registration), she must inform the other conservator of that fact.
Grandparents’ Rights: As a managing conservator
If both parents are deceased, a court may consider appointing a grandparent (or an aunt or uncle) as a managing conservator.
Grandparents’ Rights: Possession of or access to grandchild
Biological or adoptive grandparents may request possession of or access to a grandchild by filing an original suit or a suit for modification. They also may file a suit for the sole purpose of requesting the access or possession without regard to whether the appointment of a MC is an issue in the suit. Must show in affidavit that denial of possession or access would significantly impair child’s physical/mental/emotional well-being. Court will deny relief and dismiss suit unless it determines facts are true and support the relief sought.
A court must order reasonable possession of, or access to, a grandchild if the following conditions are met:
(1) at the time the relief is requested, at least one biological or adoptive parent has not had parental rights terminated
(2) the grandparent must show by preponderance of the evidence that denial would significantly impair child’s emotional/physical well-being; and
(3) The parent of the child:
a) has been incarcerated in jail/prison during the three-month period preceding the filing of the petition;
b) has been found by court to be incompetent
c) is dead; or
d) does not have actual or court-ordered possession, or access, to child
Note: If adoption has occurred or is pending by another family, grandparent does not have right of access.
Possessory Conservator
The PC in most instances is the noncustodial parent who has visitation rights. Most courts utilize a standard possession order, which must be incorporated into the decree unless the parties agree otherwise, or court does not determine it will be BIC.
In case of a child 3 or older, if the parents live within 100 miles of each other, a court gives possession to noncustodial parent:
(i) 6pm Friday to 6pm Sunday the 1st, 3rd, & 5th weekends each month
(ii) 6-8pm every Thursday during school year
(iii) 30 days in the summer; and
(iv) during even-numbered years, from 6pm the day school dismisses for spring break, until 6pm the day before school resumes
*Different rules if parents live more than 100 miles apart or child under 3 years
Conservator Change of Address
A conservator must give other party 60 days written notice of an intent to move or change employer. (in person or by certified/registered mail) A copy must also be given to SAPCR court.
Electronic Communication
A conservator may request that a court order reasonable periods of electronic communication with a child by telephone or web-based applications to supplement, but not replace a conservator’s period of possession. In determining the viability of the request, the court will consider:
i) If it is BIC
ii) whether equipment needed is reasonably available; and
iii) any other factor the court deems appropriate
Modification of Custody Order or Possession and Access
Only a court w/ continuing, exclusive jurisdiction under the SAPCR may modify an order dealing with conservatorship or possession of or access to a child.
A. Generally
A court may modify an order that provides the terms of conservatorship or for the possession of and access to a child if doing so wild be BIC and:
(i) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed;
ii) the child is at least 12 years of age and has expressed to the court, in chambers, the name of the person she wants to live with; or
iii) the conservator with the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child o another person for at least 6 months. This does not include a conservator who has temporarily relinquished possession due to military deployment, mobilization, or military duty.
B. Modification of exclusive right to determine child’s primary residence
If the suit to modify the dusty order is filed within 1 year of the original order, the person filing suit must show by an affidavit under oath one of the following:
i) that the child’s present environment may endanger the child’s physical health or significantly impair child’s emotional development.
ii) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is BIC; or
iii) that the person who has the exclusive right has voluntarily relinquished the primary care and possession of the child for at least 6 months and the modification is BIC (except in cases of military deployment or temporary duty)
