Although the word “custody” is commonly used by Texas family lawyers, statutes, and case law as a global term to describe a parent’s rights and duties, Texas law defines physical and legal custody separately.
“Legal custody” means the managing conservatorship of a child, which involves decisions such as where the child will live, what school the child will attend, which doctor the child will see, etc.
“Physical custody” means the possessory conservatorship of a child, specifically the physical care and supervision of a child.
Possession & Access
Although parents may agree to whatever possession schedule they so choose, the only schedule outlined in the Texas law is called the “Standard Possession Order.” A possession order will provide for altering holidays, pick-up/drop-off locations, weekly possession, summer possession, etc.
Right to Information
At all times, each parent has the right to information relating to the child unless limited by Court order, specifically:
- to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
- to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
- of access to medical, dental, psychological, and educational records of the child;
- to consult with a physician, dentist, or psychologist of the child;
- to consult with school officials concerning the child’s welfare and educational status, including school activities;
- to attend school activities, including school lunches, performances, and field trips;
- to be designated on the child’s records as a person to be notified in case of an emergency;
- to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
- to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.
The right to information is only limited by court order in severe circumstances.
Texas law specifically identifies the following legal decisions relating to a child:
- the right to designate the primary residence of the child;
- the right to consent to medical, dental, and surgical treatment involving invasive procedures;
- the right to consent to psychiatric and psychological treatment;
- 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;
- the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
- the right to consent to marriage and to enlistment in the armed forces of the United States;
- the right to make decisions concerning the child’s education;
- the right to the services and earnings of the child;
- 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; and
- the right to: (A) apply for a passport for the child; (B) renew the child’s passport; and (C) maintain possession of the child’s passport.
The above listed legal decisions may be made: (1) jointly by the parents; (2) independently by either parent without agreement of the other; (3) solely by one parent. However, it is not an all or nothing situation—the court may give one parent the exclusive/sole right to determine the primary residence of the child, but then require all medical decisions to be reached by agreement of both parents. Texas law presumes that joint managing conservatorship is in the best interest of the child, which means the sharing of the rights and duties of a parent by two parties (ordinarily the parents).
Typically, all legal decisions will be shared jointly except one parent will be given: (1) the exclusive right to designate the primary residence of the child; and (2) the exclusive 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. Each set of facts is unique and there are endless alterations that parties may agree to when it comes to conservatorship and possession of a child. The attorneys at Fullenweider Wilhite are experienced in handling both agreed and contested child-related matters.