“I want joint custody.”

This is a comment my clients initially make. Many parents wrongly believe that agreeing to joint custody will allow for equal sharing of children and reduce conflict at court. Unfortunately, designation as joint managing conservators is often not the end of conflict, but the beginning.

Because appointment as joint managing conservators is the default, disputes over custody do not revolve around joint and sole custody—as is commonly believed. Rather, disputes over custody revolve around which of the joint managing conservators receives the exclusive right to designate the primary residence of the child.

In 1995 the Texas Legislature changed the law requiring Judges to name both parents as “joint” conservators of their children.

However,  Judges still have to grant one parent the exclusive right to designate the primary residence of the child. Custody battles typically center around this issue. Most custody battles are decided by a judge, but either parent can request that a jury decide who has the right to determine the child’s residence.

Q: What does Texas seek to accomplish through its custody laws?

A: The guiding consideration behind all of Texas’ custody laws is the best interest of the child. Because the “best interest” standard is incredibly broad, judges and juries have wide discretion concerning how to achieve the child’s best interest. That said, the Texas Family Code sets out criteria to help judges and juries determine the child’s best interests:

• It is the Public Policy of  Texas that a child should have regular contact with both parents.
• Texas requires that the child’s environment be “safe, stable, and nonviolent.”
• Texas encourages both parents to participate in raising their child.
• Child support is independent from custody and visitation. That is, a child cannot be kept from a parent merely because the parent has not paid child support.

Q: What is a conservator?

A:  “Conservator” is the legal title that designates the rights and duties a person has over a child. A conservator’s rights and duties are set out in the Texas Family Code. Although persons other than a parent can become a conservator, this article only addresses parent conservators.

Texas uses the term “conservatorship” rather than “custody” to emphasize the responsibilities and rights of parents rather than emphasize children as  objects of property. This article, however, will use the terms interchangeably.

Q: Does Texas give preference to the mother or the father in determining custody?

A: No. Texas no longer presumes that the mother would make the better conservator. Today, judges should not consider the sex of the parents when determining conservatorship.

Q: Does the exclusive right to designate the primary residence of the child contain a geographical restriction?

A: Sometimes. Sometimes the conservator with this right is restricted to a geographical area, but sometimes the conservator with this right has no geographical restriction. If a court assigns a geographical restriction, the geographical restriction could be as small as a school district or as large as the United States.

One common reason the non-custodial parent may ask for a geographical restriction is to ensure that the child attends a particular school. Furthermore, the geographical restriction allows the non-custodial parent greater access to the child. On the other hand, a geographical restriction limits a custodial parent’s liberty. For example, a geographical restriction may affect the custodial parent’s ability to remarry, pursue a career, live near family, or allow the child to attend a different school. If the custodial parent wants to move and the court initially assigned a geographical restriction, the custodial parent must petition that the court modify the restriction. Judges and juries do their best to balance parents’ interests with the child’s best interest, but sometimes the interests of all the parties can’t be satisfied.

Q: Can a child choose which parent she wants to live with?

A: Yes (unless it is not in the child’s best interest). In 2009, the legislature repealed the section of the Texas Family Code permitting the child to file in writing the parent with whom she preferred to live. This section has been surrounded by controversy for years. The practice of filing in writing gave rise to the phenomenon known as “dueling affidavits” because each parent “assisted” the child to nominate their self.

Although courts no longer permit a child to file in writing the parent with whom the child prefers to live, a judge may interview the child in his chambers. Courts are not bound by the child’s wishes, but the interview does help the court determine the child’s best interest.