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There’s No Such Thing as Full Custody—Texas Law on Parental Responsibility

Often in custody suits, tempers are flaring and one parent may want to protect children from the other, believing that his or her erstwhile partner is an unfit parent for one reason or another, and want “full custody” over the children. But in Texas, that’s not how divorce works.

It is Texas’s public policy to “encourage parents to share in the rights and duties of raising their child” even after parents have separated or divorced. Tex. Fam. Code § 153.001(a). To that end, in custody suits, courts will often make each parent a joint managing conservator of their children and order the parties to share their parenting duties. Id. at §§ 153.131 and 153.133. It is presumed that this sort of arrangement is in the children’s best interest. Id.

“Joint” does not mean that all things will be equal. Each parent will not necessarily have “equal or nearly equal” times of actual possession of the children. Id. at § 153.135. Joint conservatorship also does not mean that the court cannot order a parent to pay the other child support. Id. at § 153.138.

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Of course, there are times when joint managing conservatorship will not be in the children’s best interests. In such cases, the parent that is not made a managing conservator shall be appointed as the child’s possessory conservator unless that “would endanger the physical or emotional welfare of the child.” Id. at § 153.191. For example, in Thompson v. Thompson, 827 S.W.2d 563 (Tex. App.—Corpus Christi 1992, writ denied), discord between the parents to the point of occasionally needing law enforcement to oversee the exchanges of possession made sharing of parental duties harmful to the children. The father refused to speak to the mother in front of the child, the child would frequently cry during the exchange because he was afraid of another fight, and the father had interfered with the child’s activities. Id. at 567. Because of the “many difficulties and disagreements and extreme animosity between appellant and appellee,” it was in the children’s best interest that their parents not be forced to share rights over the children. Id. Yet as Texas’s policy is to develop parenting plans that allow for children to have frequent contact with both parents and to encourage parents to share in parenting duties, the father was made the child’s possessory conservator. Id. See also Tex. Fam. Code § 153.001. He had decreased decision making power over the children but could still have periods of possession. Thompson, 827 S.W.2d at 569-70. “A parent is usually entitled to have periodic visitation privileges with his or her child, and that privilege should not be denied except in an extreme case of parental unfitness.” Id. at 569.

While an appointment of a sole managing conservator and a possessory conservator may not necessarily change the periods of possession each parent will have with the children, it does alter their rights. Tex. Fam. Code § 153.253. The sole managing conservator will have the exclusive right to designate the child’s primary residence, to collect child support or the services or earnings of the child, to consent to invasive medical treatment or psychological treatment for the child, to represent the child in lawsuits or act as the child’s agent in certain matters, to consent to the child’s marriage or enlistment in the armed forces, and to make decisions concerning the child’s education. Id. at § 153.132.

In short, there is no such thing as full custody. Texas child custody suits aim to allow the children to have meaningful contact with two parents who share parenting duties even if they are not married or living together. Id. at § 153.001. Even in situations where it is not in the best interest of the children that their parents are forced to work together, sole managing conservatorship is not another name for full custody.

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