epcounty.com - Domestic Relations Office -Child Custody & Rights

Domestic Relations Office

Child Custody & Rights
Whenever important things are at stake, such as child support, child custody and parental rights, debts or property rights, you may need to hire an attorney. Family Law is extremely complicated and no one other tan an attorney can give you the guidance you would receive from an attorney. The Family Law Information Center ("FLIC") strongly suggests that at some time during any family law legal process you consult with an attorney even if you cannot afford to hire one to completely handle your family law case for you.
This flyer is intended to give basic information about child custody and parental rights after or during a divorce or separation procedure.
What makes someone a parent?
The biological mother of a child is legally considered the child's parent, and an adoptive mother or father is legally a parent. A man is legally presumed to be a child's father if he is married to the biological mother when the child is born. However, under Texas law a child born to unmarried parents has no legal father, unless BOTH the father and mother sign a paper called an "Acknowledgement of Paternity" and file it with the Texas Bureau of Vital Statistics. There are other rules concerning when a man is considered to be a child's legal father, but they are too complex to explain in this flyer. The law can be very complicated when it comes to deciding whether a man is a legal father or not, so when there is a question, it is always best to consult an attorney.
Parental rights in general, when there is no court order.
Normally, parents have many rights - to care for and discipline their children as they see fit (but NOT to be abusive or neglectful); to educate them as they think appropriate, within the guidelines set by law and their local school district; to make medical decisions for their children. When both parents are together, confusion and legal problems are not common. Most problems arise when the two parents are separated. This is a very difficult topic to explain in a flyer, because the law depends so much on the particular circumstances. Keep in mind that the information given here is very general, and only an attorney can explain how the law applies to your individual situation.
In general, a parent has the right to possession of their child. But if the parents separate, which one of them has a greater right to possession of their child?
The answer is - neither one. Texas law views both mothers and fathers as equal, and they BOTH have a right to possession of their child. If they cannot agree, someone must file a lawsuit so a court can determine who the child should live with, who has the right to make decisions for the child, how much time the child should spend with each parent, and other issues.
Therefore, just because the kids have been living with one parent since the separation doesn't mean the other parent is violating any law by taking them and keeping them- may not be a nice thing to do, but it's not necessarily illegal unless there's a court order specifying each parent's rights and times of possession.
Parents vs. Non-Parents
In general, when there is no court order, a parent has a greater right to possession of a child than a non-parent. It does not matter whether the non-parent is a grandparent, aunt, or daycare, and may not even matter whether the other parent has given the non-parent permission to have possession of the child. Obviously, this could lead to some very unpleasant results when one parent leaves a child with a non-parent, and the other parent shows up and demands to take the child. Once again, if the parents cannot agree, someone must file a lawsuit so a court can determine everyone's rights and responsibilities.
Custody Designations and Right
Texas law uses special legal words to describe custody. If a child's parents are separated, the court may name one or more "managing conservators" and one or more "possessory conservators." If the court names more than one "managing conservator" then they are usually called "joint managing conservators."
When one parent is the sole managing conservator (SMC)
The managing conservator generally has more rights than a possessory conservator. Usually, the managing conservator is the one the child lives with most of the time, whose home is the child's home for school purposes, and who receives child support.
Often, they are the only parent with the right to make certain decisions for the child, such as medical and educational decisions (although it depends on the specific court order).
The possessory conservator ("PC") is generally the one who has visitation rights and pays child support. The possessory conservator still has many important rights as a parent , as long as the court does not specifically take them away - rights that often go unnoticed, such as the right to attend the child's school functions (even when it's not"their" day to have the child) and the right to have access to the child's educational and medical information. If a non-custodial parent, whether a possessory conservator or joint managing conservator, wants to get information about their child from a doctor's office or school, they should bring their court order along with them, because schools and medical providers may refuse to provide it without a written court order.
When the parents are joint managing conservators (JMC)
When the court names people joint managing conservators, they may share some rights. The court is supposed to decide how to assign each right - does one parent alone have that right? Do the two parents have to agree? Or do they each have the right, to exercise whether the other one agrees or not(which is very rare)? The court should decide these matters and the court order will state exactly what rights each parent has.
The one right that is supposed to be assigned to just one parent is the right to decide where the child will live. However, if people agree to be JMCs and not give either parent that exclusive right, some courts will approve it.