Chapter 153 of the Texas Family Code sets forth the law in Texas regarding conservatorship, possession and access.   Conservatorship is the word used in the Texas Family Code for custody, and is a distinct concept from possession and access, which refers to the schedules for visitation with and possession of the children.   Lawsuits regarding these matters as well as child support  occur sometimes as part of a suit for dissolution of marriage, sometimes as a result of a lawsuit initiated by the Texas Attorney General’s office, and sometimes occur as a result of suits brought by a parent or another party independent of a suit for dissolution of marriage.

CUSTODY
Joint legal custody in Texas is referred to as Joint Managing Conservatorship.  It is a rebuttable presumption under Texas Family Law Code Section 153.131(b) that it is in the best interests of the child that the appointment of the parents as joint managing conservators is in the best interests of the child.  However, if the court finds that appointment of the parents as joint managing conservators is not in the best interest of the child because the appointment would significantly impair the child’s health or emotional development the court can appoint one parent (or in some cases a nonparent) the sole managing conservator of the child.

The rights and duties of parents appointed joint managing conservators are set forth in Texas Family Code Sections 153.073 and 153.074 as follow:

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.


Sec. 153.074.  RIGHTS AND DUTIES DURING PERIOD OF POSSESSION.  Unless limited by court order, a parent appointed as a conservator of a child has the following rights and duties during the period that the parent has possession of the child:

(1)  the duty of care, control, protection, and reasonable discipline of the child;

(2)  the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;

(3)  the right to consent for the child to medical and dental care not involving an invasive procedure;  and

(4)  the right to direct the moral and religious training of the child.

Even where the parties are appointed Joint Managing Conservators, the Court designates one parent or party as having the right to designate the primary place of residence of the child or the children.    

The parents or the parties can agree to be fully equal and to not have one party designated the party to designate the primary place of residence of the child, but if incorporated into a court order that position has to be reached by agreement of the parties;  when the decision is in the court’s hands the court has to select one party as the party to designate the primary residence of the child or the children.  

When the court appoints one parent the sole managing conservator of the child or children, the

Texas Family Code sets forth the rights and duties of that parent in Section 153.132, as follows:

 

Sec. 153.132.  RIGHTS AND DUTIES OF PARENT APPOINTED SOLE MANAGING CONSERVATOR.  Unless limited by court order, a parent appointed as sole managing conservator of a child has the rights and duties provided by Subchapter B and the following exclusive rights:

(1)  the right to designate the primary residence of the child;

(2)  the right to consent to medical, dental, and surgical treatment involving invasive procedures;

(3)  the right to consent to psychiatric and psychological treatment;

(4)  the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;

(5)  the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;

(6)  the right to consent to marriage and to enlistment in the armed forces of the United States;

(7)  the right to make decisions concerning the child's education;

(8)  the right to the services and earnings of the child; and

(9)  except when a guardian of the child's estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child's estate if the child's action is required by a state, the United States, or a foreign government.

When the court designates a nonparent as the sole managing conservator, the rights and duties are set forth in Texas Family Code Section 153.371 as follows:

 

Sec. 153.371.  RIGHTS AND DUTIES OF NONPARENT APPOINTED AS SOLE MANAGING CONSERVATOR.  Unless limited by court order or other provisions of this chapter, a nonparent, a licensed child-placing agency, or the Department of Family and Protective Services appointed as a managing conservator of the child has the following rights and duties:

(1)  the right to have physical possession and to direct the moral and religious training of the child;

(2)  the duty of care, control, protection, and reasonable discipline of the child;

(3)  the duty to provide the child with clothing, food, shelter, education, and medical, psychological, and dental care;

(4)  the right to consent for the child to medical, psychiatric, psychological, dental, and surgical treatment and to have access to the child's medical records;

(5)  the 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;

(6)  the right to the services and earnings of the child;

(7)  the right to consent to marriage and to enlistment in the armed forces of the United States;

(8)  the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;

(9)  except when a guardian of the child's estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child's estate if the child's action is required by a state, the United States, or a foreign government;

(10)  the right to designate the primary residence of the child and to make decisions regarding the child's education; and

(11)  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 the adoption of the child and to make any other decision concerning the child that a parent could make.

In situations where there are custody fights, the court has to look out for the best interests of the children in determining custody (because of the presumption in Texas that children should be with their parents, in cases where a nonparent is involved, the court has to look to some additional jurisdictional factors). The Court looks to what are commonly referred to in Texas Family courts as the Holley factors, from the Texas Supreme Court’s 1976 decision in the case of Holley v. Adams, to determine the best interests of the child or children.  The Holley factors include

  1. the desires of the child
  2. the emotional and physical needs of the child now and in the future
  3. the emotional and physical danger to the child now and in the future
  4. the parenting abilities of the individuals seeking custody
  5. the programs available to assist those individuals to promote the best interest of the child
  6. the plans for the child by these individuals or by the agency seeking custody
  7. the stability of the home or proposed placement
  8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one
  9. any excuse for the acts or omissions of the parent

While the Holley factors are not exclusive, they provide the established framework for a “best interest” analysis.

In situations where there is a custody dispute, El Paso County courts typically, but not always, order a social study to be conducted by the El Paso County Domestic Relations office or by some other person designated by the Court, to assist the court in determining the best interests of the child.   Parties can also ask the judge to confer with the child or children regarding the case, to assist in determining what would be in the child’s best interest.   Also, the courts frequently order that the parties attend mediation before a final hearing, to see if the disputed custody issues can be resolved without the need for a trial.

Pursuant to Texas Family Code Section 153.004 the court when determining custody or visitation, considers evidence of domestic violence by one spouse against the other spouse, a parent of the child, or any person younger than 18 years of age, committed within a two-year period of the filing of the suit or during pendency of the suit.

Where there is credible evidence of past or present child abuse or neglect, or physical or sexual abuse by one parent against the other parent, a spouse or a child, the court will not award joint managing conservatorship or sole managing conservatorship.

POSSESSION AND ACCESS
In most situations the Court will order possession of and access to the child pursuant to the Standard Possession Order set forth in the Texas Family Law Code.  The Standard Possession Order is intended for children three years of age or older and the El Paso County Family courts have a possession order for children under the age of three where there is no agreement between the parties.  In the Standard Possession Order the Possessory Conservator refers to the conservator who was not selected by the court, or who does not under the court’s orders have the right to select the primary residence of the child or children. 

SUBCHAPTER F. STANDARD POSSESSION ORDER

Sec. 153.3101.  REFERENCE TO "SCHOOL" IN STANDARD POSSESSION ORDER.  In a standard possession order, "school" means the elementary or secondary school in which the child is enrolled or, if the child is not enrolled in an elementary or secondary school, the public school district in which the child primarily resides.


Sec. 153.311.  MUTUAL AGREEMENT OR SPECIFIED TERMS FOR POSSESSION.  The court shall specify in a standard possession order that the parties may have possession of the child at times mutually agreed to in advance by the parties and, in the absence of mutual agreement, shall have possession of the child under the specified terms set out in the standard possession order.


Sec. 153.312.  PARENTS WHO RESIDE 100 MILES OR LESS APART.  (a)  If the possessory conservator resides 100 miles or less from the primary residence of the child, the possessory conservator shall have the right to possession of the child as follows:

(1)  on weekends throughout the year beginning at 6 p.m. on the first, third, and fifth Friday of each month and ending at 6 p.m. on the following Sunday; and

(2)  on Thursdays of each week during the regular school term beginning at 6 p.m. and ending at 8 p.m., unless the court finds that visitation under this subdivision is not in the best interest of the child.

(b)  The following provisions govern possession of the child for vacations and certain specific holidays and supersede conflicting weekend or Thursday periods of possession.  The possessory conservator and the managing conservator shall have rights of possession of the child as follows:

(1)  the possessory conservator shall have possession in even-numbered years, beginning at 6 p.m. on the day the child is dismissed from school for the school's spring vacation and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in odd-numbered years;

(2)  if a possessory conservator:

(A)  gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 days beginning not earlier than the day after the child's school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each, with each period of possession beginning and ending at 6 p.m. on each applicable day; or

(B)  does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 consecutive days beginning at 6 p.m. on July 1 and ending at 6 p.m. on July 31;

(3)  if the managing conservator gives the possessory conservator written notice by April 15 of each year, the managing conservator shall have possession of the child on any one weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during one period of possession by the possessory conservator under Subdivision (2), provided that the managing conservator picks up the child from the possessory conservator and returns the child to that same place; and

(4)  if the managing conservator gives the possessory conservator written notice by April 15 of each year or gives the possessory conservator 14 days' written notice on or after April 16 of each year, the managing conservator may designate one weekend beginning not earlier than the day after the child's school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, during which an otherwise scheduled weekend period of possession by the possessory conservator will not take place, provided that the weekend designated does not interfere with the possessory conservator's period or periods of extended summer possession or with Father's Day if the possessory conservator is the father of the child.


Sec. 153.313.  PARENTS WHO RESIDE OVER 100 MILES APART.  If the possessory conservator resides more than 100 miles from the residence of the child, the possessory conservator shall have the right to possession of the child as follows:

(1)  either regular weekend possession beginning on the first, third, and fifth Friday as provided under the terms applicable to parents who reside 100 miles or less apart or not more than one weekend per month of the possessory conservator's choice beginning at 6 p.m. on the day school recesses for the weekend and ending at 6 p.m. on the day before school resumes after the weekend, provided that the possessory conservator gives the managing conservator 14 days' written or telephonic notice preceding a designated weekend, and provided that the possessory conservator elects an option for this alternative period of possession by written notice given to the managing conservator within 90 days after the parties begin to reside more than 100 miles apart, as applicable;

(2)  each year beginning at 6 p.m. on the day the child is dismissed from school for the school's spring vacation and ending at 6 p.m. on the day before school resumes after that vacation;

(3)  if the possessory conservator:

(A)  gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 42 days beginning not earlier than the day after the child's school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each, with each period of possession beginning and ending at 6 p.m. on each applicable day; or

(B)  does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 42 consecutive days beginning at 6 p.m. on June 15 and ending at 6 p.m. on July 27;

(4)  if the managing conservator gives the possessory conservator written notice by April 15 of each year the managing conservator shall have possession of the child on one weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during one period of possession by the possessory conservator under Subdivision (3), provided that if a period of possession by the possessory conservator exceeds 30 days, the managing conservator may have possession of the child under the terms of this subdivision on two nonconsecutive weekends during that time period, and further provided that the managing conservator picks up the child from the possessory conservator and returns the child to that same place; and

(5)  if the managing conservator gives the possessory conservator written notice by April 15 of each year, the managing conservator may designate 21 days beginning not earlier than the day after the child's school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each, with each period of possession beginning and ending at 6 p.m. on each applicable day, during which the possessory conservator may not have possession of the child, provided that the period or periods so designated do not interfere with the possessory conservator's period or periods of extended summer possession or with Father's Day if the possessory conservator is the father of the child.
 

Sec. 153.314.  HOLIDAY POSSESSION UNAFFECTED BY DISTANCE PARENTS RESIDE APART.  The following provisions govern possession of the child for certain specific holidays and supersede conflicting weekend or Thursday periods of possession without regard to the distance the parents reside apart.  The possessory conservator and the managing conservator shall have rights of possession of the child as follows:

(1)  the possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years;

(2)  the possessory conservator shall have possession of the child in odd-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in even-numbered years;

(3)  the possessory conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years;

(4)  the parent not otherwise entitled under this standard possession order to present possession of a child on the child's birthday shall have possession of the child beginning at 6 p.m. and ending at 8 p.m. on that day, provided that the parent picks up the child from the residence of the conservator entitled to possession and returns the child to that same place;

(5)  if a conservator, the father shall have possession of the child beginning at 6 p.m. on the Friday preceding Father's Day and ending on Father's Day at 6 p.m., provided that, if he is not otherwise entitled under this standard possession order to present possession of the child, he picks up the child from the residence of the conservator entitled to possession and returns the child to that same place; and

(6)  if a conservator, the mother shall have possession of the child beginning at 6 p.m. on the Friday preceding Mother's Day and ending on Mother's Day at 6 p.m., provided that, if she is not otherwise entitled under this  standard possession order to present possession of the child, she picks up the child from the residence of the conservator entitled to possession and returns the child to that same place.

 

Sec. 153.315.  WEEKEND POSSESSION EXTENDED BY HOLIDAY.  (a)  If a weekend period of possession of the possessory conservator coincides with a student holiday or teacher in-service day that falls on a Monday during the regular school term, as determined by the school in which the child is enrolled, or with a federal, state, or local holiday that falls on a Monday during the summer months in which school is not in session, the weekend possession shall end at 6 p.m. on Monday.

(b)  If a weekend period of possession of the possessory conservator coincides with a student holiday or teacher in-service day that falls on a Friday during the regular school term, as determined by the school in which the child is enrolled, or with a federal, state, or local holiday that falls on a Friday during the summer months in which school is not in session, the weekend possession shall begin at 6 p.m. on Thursday.

 

Sec. 153.316.  GENERAL TERMS AND CONDITIONS.  The court shall order the following general terms and conditions of possession of a child to apply without regard to the distance between the residence of a parent and the child:

(1)  the managing conservator shall surrender the child to the possessory conservator at the beginning of each period of the possessory conservator's possession at the residence of the managing conservator;

(2)  if the possessory conservator elects to begin a period of possession at the time the child's school is regularly dismissed, the managing conservator shall surrender the child to the possessory conservator at the beginning of each period of possession at the school in which the child is enrolled;

(3)  the possessory conservator shall be ordered to do one of the following:

(A)  the possessory conservator shall surrender the child to the managing conservator at the end of each period of possession at the residence of the possessory conservator; or

(B)  the possessory conservator shall return the child to the residence of the managing conservator at the end of each period of possession, except that the order shall provide that the possessory conservator shall surrender the child to the managing conservator at the end of each period of possession at the residence of the possessory conservator if:

(i)  at the time the original order or a modification of an order establishing terms and conditions of possession or access the possessory conservator and the managing conservator lived in the same county, the possessory conservator's county of residence remains the same after the rendition of the order, and the managing conservator's county of residence changes, effective on the date of the change of residence by the managing conservator; or

(ii)  the possessory conservator and managing conservator lived in the same residence at any time during a six-month period preceding the date on which a suit for dissolution of the marriage was filed and the possessory conservator's county of residence remains the same and the managing conservator's county of residence changes after they no longer live in the same residence, effective on the date the order is rendered;

(4)  if the possessory conservator elects to end a period of possession at the time the child's school resumes, the possessory conservator shall surrender the child to the managing conservator at the end of each period of possession at the school in which the child is enrolled;

(5)  each conservator shall return with the child the personal effects that the child brought at the beginning of the period of possession;

(6)  either parent may designate a competent adult to pick up and return the child, as applicable;  a parent or a designated competent adult shall be present when the child is picked up or returned;

(7)  a parent shall give notice to the person in possession of the child on each occasion that the parent will be unable to exercise that parent's right of possession for a specified period;

(8)  written notice, including notice provided by electronic mail or facsimile, shall be deemed to have been timely made if received or, if applicable, postmarked before or at the time that notice is due; and

(9)  if a conservator's time of possession of a child ends at the time school resumes and for any reason the child is not or will not be returned to school, the conservator in possession of the child shall immediately notify the school and the other conservator that the child will not be or has not been returned to school.

 

Sec. 153.317.  ALTERNATIVE BEGINNING AND ENDING POSSESSION TIMES.  (a)  If elected by a conservator, the court shall alter the standard possession order under Sections 153,312, 153.314, and 153.315 to provide for one or more of the following alternative beginning and ending possession times for the described periods of possession, unless the court finds that the election is not in the best interest of the child:

(1)  for weekend periods of possession under Section 153.312 (a)(1) during the regular school term:

(A)  beginning at the time the child's school is regularly dismissed;

(B)  ending at the time the child's school resumes after the weekend; or

(C)  beginning at the time described by Paragraph (A) and ending at the time described by Paragraph (B);

(2)  for Thursday periods of possession under Section 153.312 (a)(2):

(A)  beginning at the time the child's school is regularly dismissed;

(B)  ending at the time the child's school resumes on Friday; or

(C)  beginning at the time described by Paragraph (A) and ending at the time described by Paragraph (B);

(3)  for spring vacation periods of possession under Section 153.312 (b)(1), beginning at the time the child's school is dismissed for those vacations;

(4)  for Christmas school vacation periods of possession under Section 153.314 (1), beginning at the time the child's school is dismissed for the vacation;

(5)  for Thanksgiving holiday periods of possession under Section 153.314 (3), beginning at the time the child's school is dismissed for the holiday;

(6)  for Father's Day periods of possession under Section 153.314 (5), ending at 8 a.m. on the Monday after Father's Day weekend;

(7)  for Mother's Day periods of possession under Section 153.314 (6):

(A)  beginning at the time the child's school is regularly dismissed on the Friday preceding Mother's Day;

(B)  ending at the time the child's school resumes after Mother's Day; or

(C)  beginning at the time described by Paragraph (A) and ending at the time described by Paragraph (B); or

(8)  for weekend periods of possession that are extended under Section 153.315 (b) by a student holiday or teacher in-service day that falls on a Friday, beginning at the time the child's school is regularly dismissed on Thursday.

(b)  A conservator must make an election under Subsection (a) before or at the time of the rendition of a possession order.  The election may be made:

(1)  in a written document filed with the court; or

(2)  through an oral statement made in open court on the record.

 

The parties can agree to a possession schedule that is not the Standard Possession Order which can be incorporated into the court’s possession and access order.

You should also be aware that most El Paso County Family Law Courts at the time of the issuance of a custody and possession order will impose a geographic restriction to El Paso County, meaning that the child or children’s residence cannot be changed to a location outside of El Paso County, Texas without the consent of both parties, or without a modification of the order whereby the court agrees to lift the geographic restriction.

Possession by Agreement of the Parties
The parties can agree to a possession schedule that is not the Standard Possession Order which can be incorporated into the court’s possession and access order.

Where Standard Possession Order Unworkable
Where work schedules, a year round school schedule of a child, or other circumstances render the Standard Possession Order unworkable, “the court shall render an order that grants periods of possession of the child as similar as possible to those provided by the Standard Possession Order.”  Texas Family Code 153.253.  

Denials of or Limitations to Possession
Pursuant to Texas Family Code Section 153.004 “the Court shall consider the commission of family violence or sexual abuse in determining whether to deny, restrict or limit the possession of a child by a parent who is appointed possessory conservator.”  Again, the possessory conservator is the parent who does not have the right to designate the primary residence of the child.  Sometimes, rather than deny visitation, the court will order supervised visitation.    The YMCA in El Paso has a supervised visitation program, as well as a safe exchange program where the court sometimes orders the parties to exchange the children if there is a history of violence between the parties, or if there is a history of one party interfering with the other party’s right to possession.