In Texas, many fathers have asked the Family Lawyers at Skillern Firm this very question. In Texas courts, the word “custody” is just not used. The Courts and the Law in Texas refer to Conservatorship, Possession, and Access. Each of these words have a different meaning and this blog post will attempt to explain them as well as discussing the rights of fathers in Texas. The answer is that, believe it or not, fathers can have the same rights as mothers.
Background
To understand what rights there are, we must first dive into a very general discussion of how a divorce or suit affecting the parent-child relationship works. A divorce will divide up the marital property (or property that is acquired during the marriage) and it will also determine the parents’ rights in regards to the children. Generally, in Texas, there are two levels of conservatorship:
1) Joint; and,
2) Sole.
In Texas, a parent is generally referred to a joint managing conservator or a sole managing conservator, depending on the circumstances. Obtaining sole managing conservatorship (or “SMC” colloquially) is not an easy task and is extremely difficult to obtain in Texas. The Courts have a preference for parents to be joint managing conservators of the child(ren) of the marriage.
Joint Managing Conservatorship
The term “joint custody” really refers to the legal status as being a joint managing conservator. There are all kinds of different iterations as to how being joint managing conservators will play out as far as who has exclusive, independent, or joint rights. From a visitation standpoint (referred to as “possession and access” in Texas), there are any number of different variations. More often than not, the parents will reach an agreement on how these rights of possession and access play out.
Exclusive Rights
Generally, parents will have exclusive rights. It is exactly what it sounds like – the parent with an exclusive right has the absolute right to make a decision – to the exclusion of the input of the other spouse. This is most often seen when determining which parent, or joint managing conservator, has the right to designate the primary residence of the child(ren). Of course, the parties can agree that this is a non-exclusive right. But practically speaking, one parent usually is given this exclusive right. Sometimes, one parent may have an exclusive right to make educational decisions, or decisions regarding invasive medical procedures. Again, when determining who has what rights, the Court can make the determination in the beginning of a divorce in the temporary orders, or after a trial (Court or Jury) in the final divorce decree. It is presumable advantageous to reach an agreement between the Parties than to let a Judge or a Jury decide these issues.
Independent Rights
These are rights that each parent, or joint managing conservator, have independent of each other. Typically, these rights are seen when determining who has the right to consent to non-invasive medical care of the child(ren), or in giving permission for a non-emancipated minor to marry or join the military. It is also typically seen for psychological treatment – each parent has an independent right to consent to psychological or psychiatric treatment. As an independent right, each parent can make the decision on their own and do not need the consent of the other parent. One must be especially careful in agreeing to independent rights – especially in a hostile divorce. Imagine a scenario where the parents each have the independent right to consent to medical treatment and psychological treatment, but where the parties must split the costs for such treatment. One parent with more resources may decide to take the child(ren) to a psychologist daily, running up a very large amount of bills, of which the other parent must reimburse 50% of the costs. This is not an ideal scenario. But this is why it is absolutely critical to use the services of a Family Lawyer like the attorneys at Skillern Firm – to ensure that your particular situation is taken into account.
Father’s Rights – Custody
Fathers can have the same rights as Mothers. In fact, both parties can agree to split possession and access time 50/50 with neither parent paying child support, and each parent having all rights independently. This is generally seen in a friendly divorce especially when both parents understand the importance of co-parenting their child(ren). There is no presumption in the law that one parent be the sole managing conservator. In fact, under Texas law, there is a presumption that parents be joint managing conservators. It is a presumption that can be overcome based on circumstances, which we will touch on in a later blog, but fathers need to know that they have options and that the law does not give a preference to one parent over another.
To discuss your particular situation with a Texas Family Lawyer, call our office at (713) 229-8855 and speak to one of our experienced family lawyers. We are here to help you navigate your rights as a father.
* At Skillern Firm, we pride ourselves on the results we have achieved for those we help. We stand ready to assist you with any of your Family Law needs. Contact us today. https://skillernfirm.com/