With about 40 percent of all families having one or more children under the age of 18, issues of child custody, or conservatorship, often come up in Texas divorces. While divorce is rarely easy for parting spouses, the process is much more difficult when children are involved. At the Law Office of Jason Wright, we have extensive experience representing parents seeking to establish conservatorship of their children during the divorce process. We also help parents pursue modifications of conservatorship orders when the court’s existing order is based on changing circumstances. Our Austin divorce lawyer takes a comprehensive approach to conservatorship issues, aggressively advocating for his clients’ while ensuring an effective and practical resolution of the surrounding issues.
Conservatorship has several meanings. Broadly speaking, conservatorship refers to the principle that one person is given authority to make important decisions on another’s behalf. In Texas, courts use the term conservatorship to refer to child custody. In other words, instead of naming a parent a sole or joint custodial of a minor child, Texas courts refer to the parent as a sole or joint conservator.
In most cases, courts issue conservatorship orders during the divorce process. However, there are some situations where a judge can entertain a parent’s request for a conservatorship order outside the context of divorce. For example, if the court is already hearing a family violence protective order case, it may allow the parent who filed the petition to seek conservatorship of any minor children. Other examples of when a court may award conservatorship is in any suit affecting the parent-child relationship case (SAPCR case) or when the court is issuing a decision regarding the paternity of a child or children.
In Texas, courts have three choices when naming a conservator for a minor child, joint managing conservatorships, sole managing conservatorships and possessory conservatorships. Each is discussed in detail below.
Whenever possible, Texas courts prefer to name both parents joint managing conservators over any minor children. In this type of arrangement, both parents share the right to make crucial decisions that will affect their children. For example, if both parents are named as joint managing conservators, they will each have a say in the children’s healthcare and schooling.
When a court names both parents joint managing conservators, it does not mean that each parent will have equal time with their children. Instead, the court will devise a possession order that outlines how each parent has physical custody of the children.
While the default is naming both parents as joint managing conservators, courts may opt not to do so if there is a history of domestic abuse, drug or alcohol abuse, or concern over a parent’s ability to safely monitor the children while in the parent’s care.
If a court finds it in the children’s best interest not to name both parents as joint managing conservators, it may choose to designate one parent as a sole managing conservator. Typically, this involves a situation where there is a history of physical or substance abuse or if one parent is absent from the children’s lives.
When the court names one parent as the sole managing conservator, that parent will have the right to make decisions about their children’s lives without getting the other parent’s input or approval. However, the other parent will still have possessory rights of the child. Possession is the term Texas uses to describe what many think of as physical custody.
A possessory conservator is typically used to describe a situation in which the court names one parent as the sole managing conservator but allows the other parent to have possession rights of the child.
Possessory conservators cannot make decisions on their child’s behalf. However, they still have a right to see and spend time with their children. Depending on the circumstances, courts may allow regular visits without supervision. However, in some cases where the court is concerned about a child’s safety, it may require supervised visits.
Establishing a possession and conservatorship order is critical in any divorce proceeding, as it provides much-needed clarity to the parents’ relationship with their children. It can also decrease the likelihood of further arguments and legal proceedings. However, a court’s decision about a conservatorship is made at a single moment in time. If circumstances materially and substantially change, either parent may ask the court to revisit its previous decision by requesting a modification order.
When a court makes a conservatorship decision, that decision is indefinite in that it does not expire in a certain amount of time. However, these decisions are not necessarily permanent; when the circumstances that went into the court’s decision materially and substanially change, either parent can ask the court to reconsider its decision.
In some situations, both parents will agree that changed circumstances warrant a modification order. Before a court imposes any changes to an existing conservatorship order, both parents must agree that there is a need to change the order as well as on the specific changes that are appropriate. If both parents agree that changes should be made but cannot agree on the terms, the court will make the ultimate decisions on which changes are appropriate.
More often than not, there is some level of disagreement between spouses regarding a modification of conservatorship. The first step to obtaining a contested modification order is to prove that the circumstances have materially and substantially changed since the original order went into effect. For example, the following are examples of changed circumstances that may justify a request for a modification:
Contrary to popular opinion, children do not get to decide these issues. However, when the child is 12 years old, they can request to meet with the judge to voice their preference of which parent they would primarily like to live with.
At the Law Office of Jason Wright, our Austin conservatorship attorney has extensive experience helping parents through the complex and emotionally challenging process of obtaining a conservatorship. We understand that this is an exceptionally challenging time for you and do everything we can to make the process as clear as possible while aggressively advocating on your behalf.
If you are considering seeking a conservatorship order, a modification or an existing conservatorship order, it is vital to seek assistance from an experienced Austin conservatorship lawyer. While there is no legal requirement that you are represented by counsel, having a lawyer by your side will make the process easier and increase the likelihood of a favorable result.
Most modification orders are contested. However, even if you believe that your former spouse agrees, it is best to outline the details of any proposed changes with a lawyer in advance to reduce the chances of the modification request suddenly becoming contested. If your former spouse disagrees with your proposed terms, it is almost sure that they will have a lawyer representing their interests, and you should be certain your rights are similarly protected.
If you are in the process of divorce or want to make changes to an existing conservatorship order, reach out to the Law Office of Jason Wright. Our Austin child custody lawyer has a long history of helping parents maintain a positive, healthy relationship with their children. Whenever possible, we take a collaborative approach to reduce the stress and delay that can accompany a contested hearing. However, as experienced litigators, we are ready to aggressively advocate on your behalf in court if your former spouse is unwilling to agree to a fair resolution. To learn more and to schedule a consultation with Attorney Wright, call 512-884-1221 today. You can also reach us through our online contact form.
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