Conservatorship and Possession in Texas: An Overview
In Texas, the right to make decisions about a child — known as legal custody in other states — is called conservatorship. The right to spend time with a child — called physical custody and visitation in other places — is referred to as possession and access.
Despite the unique terminology, Texas is like other U.S. states in that its courts make conservatorship, possession and access decisions based on "the best interest of the child." In other words, judges (and sometimes juries) have some flexibility as they consider the physical health and emotional well-being of each child in a case.
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The state's policy when deciding conservatorship, possession and access is to:
- Assure the child frequent contact with parents who act in the child's best interest
- Provide a safe, stable and nonviolent environment for the child
- Encourage parents to share in the rights and duties of raising their child
All cases must follow the Texas Constitution and Statutes — particularly Chapter 153 of the Texas Family Code. But some practices and steps in the legal process can vary slightly by court. Read on for a state overview.
Order of preference for conservators
Texas presumes both parents should have the right and responsibility to make decisions and care for their child as joint managing conservators, unless this would impair the child's physical or emotional health.
If that's the case, the state's preference is for one parent to be sole managing conservator and the parent in question a possessory conservator — again, with the caveat that this not endanger the child's physical or emotional well-being. A possessory conservator has the rights to spend time with the child and to make limited decisions about the child.
Only parents with an extreme history of abuse, neglect or equally concerning behavior are not named conservators at all.
When both parents are unsuitable to serve as managing conservators, the court may consider other adults for the role or the Department of Protective Services may get involved. Any nonparent named managing conservator must report back to the court on the child's well-being every 12 months.
Regardless of whether it reflects this hierarchy of preferences, an arrangement agreed upon by both parents is likely to be approved by a judge, unless it raises serious concerns about the child's well-being.
Texas courts are not permitted to consider a person's gender or marital status when deciding his or her fitness for conservatorship, possession and access.
Types of cases
Texas courts make decisions about child conservatorship, possession and access in what's called a suit affecting the parent-child relationship (or SAPCR). A divorce case automatically includes a SAPCR if you and your spouse have children under 18.
Some procedural details differ between a divorce case and a standalone SAPCR, such as the paperwork you file to start your case or settle your case. But overall, guidelines and processes for the conservatorship, possession and access part of the case remain the same.
Suits regarding paternity or family violence protective orders can also be connected to your divorce case or SAPCR under one cause number (also known as a case number).
Why settling is encouraged
Family law professionals advise parents to reach an agreement outside of a courtroom — called settling — whenever possible. Settling saves parents time and money, keeps them in charge of deciding what's best for their children, and prevents further backlogging the court system.
Legal proceedings can come to an end at any time if parents reach a settlement agreement that is approved by a judge.
Many courts order parents to mediation so they might settle their dispute. Parents can also mediate voluntarily to avoid litigation.
Other alternative dispute resolution methods that help parents reach settlement include collaborative law and arbitration.
Though it's not recommended, many people represent themselves in family court.
If you choose to go that route, you'll be known as a "pro se" party, and the judge will hold you to the same standards attorneys are held to.
This means it's essential you do your research. Familiarize yourself with Texas laws, including the Texas Family Code and rules about court proceedings. Ask your district clerk's office what forms or tools it has for pro se parties. And make sure to take advantage of other free resources for parents representing themselves.
Keep in mind that the other parent in your suit may have hired an attorney, and that attorneys go through years of training to understand the complex legal system.
At the start of your case, do a free or low-cost consultation with a law firm to hear an attorney's thoughts. If you can't afford to hire someone, ask a legal aid society whether you qualify for pro bono services. Or consider limited legal help, in which you pay an attorney to work on aspects of your case, like drafting a document or preparing you for a hearing.
Even if you and the other parent reach a settlement outside of the courtroom, it's recommended you have a lawyer review the proposed final order you'll submit for a judge's approval.
By law, you must have an attorney if you use the collaborative law process. In collaborative law, a team of professionals helps parties work out disputes; the team must include a separate collaborative attorney for each party.
Length of proceedings
Cases that never settle and instead go to a bench trial receive final orders anywhere from six months to two years after their initial filing. Jury trials, which can be specially requested, generally require more time.
Mediation is the fastest method for deciding conservatorship, possession and access. Most families who choose to mediate reach an agreement within a handful of sessions, which can each last from two hours to a full day. Consecutive sessions may be spread over weeks or months. If you mediate a divorce case quickly, you will have to wait until your case is at least 60 days old to file for settlement.
Arbitration is another way to get final orders relatively quickly. The arbitration hearing often lasts only a day. Preparing your evidence will take as long as it would for trial, but as soon as both sides are ready, the hearing can begin without waiting for a slot on a crowded court calendar.
In collaborative law, families usually reach agreement within six months to a year. Most parents will meet with their collaborative team at least four to six times during that period.
Costs to expect
Disputes over conservatorship, possession and access are expensive. Parents may need to pay attorneys, experts, the court and beyond. The more parents are able to compromise, the less money they will have to spend fighting.
Attorney fees are usually the most costly part of a suit. While they vary widely based on your lawyer's location and expertise, expect to pay between $150 and $600 an hour. If your case goes all the way to trial, you're likely to pay anywhere from $20,000 to several hundred thousand dollars total to your legal representative.
Other costs that may arise during litigation include expert witnesses, evaluations, court-ordered mediation, parenting facilitation or coordination, amicus attorneys, attorneys ad litem or guardians ad litem.
Deciding conservatorship, possession and access outside of court is often more affordable.
Mediation is typically the most cost-effective method. Mediators' fees might be calculated by the hour (often $100 to $450 an hour per party) or by the session (often $400 to $2,500 per party for a full day). If parents bring lawyers, each pays his or her own, in addition.
Collaborative law is more costly because it involves numerous professionals, but it tends to add up to less than a trial because of its accelerated pace. Be prepared to pay somewhere around $20,000.
Arbitration expenses usually fall between those of mediation and collaborative law. They will vary based on whether you hire one arbitrator or a panel.
Children in court
If a child 12 years or older wants to share an opinion in a case involving conservatorship, possession and access, the judge will arrange an interview in chambers. For younger children, the judge has the discretion whether to allow an interview. It's rare for a judge to speak with a child under 10.
Judges often let a child's legal representative attend chamber interviews, but parents are never admitted.
The judge doesn't directly ask the child which parent he or she prefers for a conservator role. Instead, the judge asks questions that indirectly shed light on the situation, such as how the child spends his or her days in each home.
Afterward, the child's preference becomes one of the factors the judge considers before issuing orders, as long as there's no evidence the child was manipulated.
Chamber interviews are only for bench trials (in which a judge decides the case) and not for jury trials (in which the jury needs to be present to hear evidence).
Very rarely, children do testify in the courtroom — usually about alleged abuse. Certain children are allowed to testify outside the courtroom: children 12 or younger, as well older children who can't testify in court due to medical conditions. A recording or live transmission is shown in court for these cases.
Do not bring your child to court unless he or she is testifying or otherwise participating in the suit. If your child is participating, ask the court for specifics on who should bring the child and where they should bring him or her.
Texas courts assume parents should decide whether or not to let grandparents have access to a child. Courts will only grant possession and access rights to grandparents if all of the following are true:
- The child's physical health or emotional well-being would be significantly impaired without it.
- At least one biological or adoptive parent of the child has parental rights.
- The parent through whom the grandparent is related has no possession of or access to the child.
Exclusive continuing jurisdiction
Once a court has issued a final order regarding conservatorship, possession and access, it has "exclusive, continuing jurisdiction" of the case. This means the same court will handle any requests to modify or enforce the order, unless a transfer is granted for one of the following reasons:
- The child's main residence has been in a different county within Texas for at least the last six months.
- The child and at least one parent no longer have a significant connection to Texas, and evidence would be difficult to gather there.
- The child and both parents all live outside of Texas.
- The court decides it is no longer the appropriate forum.
Many Texas courts require all divorcing parents who have children under 18 to take a class about parenting through divorce.
Classes last at least four hours and can often be completed online (check with your court) or, sometimes, at your Domestic Relations Office. They do not include individual legal advice or therapy.
The court cannot order you to attend a course you can't afford or a course that costs more than $100.
You can attend class with the other parent in your case, but any information you learn about him or her during the class cannot be used in your suit.
Check with your court about specific local requirements.
The process of deciding conservatorship, possession and access requires serious organization. You may need to create a parenting plan, draft multiple possession schedules, track your time with your child, calculate expenses and beyond.
The Custody X Change app enables you to do all of that in one place.
With a parenting plan template, possession calendars, an expenses tracker and more, Custody X Change makes sure you're prepared for whatever arises in your journey to conservatorship, possession and access.
Take advantage of our technology to stay on top of all the moving parts of your case.
Custody X Change is software that creates customizable parenting plans and possession schedules.