3 Parts of a Kid
In a custody order, a child can be broken into three areas: conservatorship, possession, and support. This article explains the three areas and common issues/myths for each.
Conservatorship
Conservatorship is in layman's terms- what rights do I have to the child. This area is where the Court delineates what rights and duties a conservator (usually parent) will have to a child. Such rights include the right to designate a primary residence, right to make educational decisions, and the rights to information about the child.
The types of rights are laid out in Texas Family Code Ch 153.
Parents are presumptively going to be named as Joint Managing Conservators. This essentially means that you both have full "rights" to the child, but some specific rights will still be granted exclusively to one conservator, require joint agreement, or a variety of other options.
There are generally four "big" rights that are delineated differently. These rights can be exclusively to one conservator, require joint agreement of both conservators, can be independent (both have the right to consent without agreement of the other- this causes big problems), require consultation between the conservators prior to making a decision, or even require the conservators to follow the advise of specific professionals.
- The first is the right to designate primary residence. The right to designate primary residence is most often granted to one parent, but in some cases can be granted to neither parent. This right can also be subject to a geographic restriction that can be as wide as the state or as narrow as a specific school district.
- The second is the right to consent to invasive medical/dental/surgical treatment. This is for non-emergency type situations, i.e. ear tubes, tonsils, etc. All conservators may consent to medical treatment in emergency situations where the child is in imminent danger.
- The third is the right to consent to psychiatric and psychological treatment. This is specifically on this list as a "big" right due to the prescribing of mental health medications to children and the child's use of a counselor.
- The final "big" right is educational decisions. This right causes issues when a child is advanced or having difficulties in school. Since the COVID pandemic, this right has been the source of litigation to move to homeschooling or private schools over the prior used public school system.
In some circumstances, the presumption can be rebutted and one parent will be named as Sole Managing Conservator. The other parent will be named as a Possessory Conservator. This designation seriously limits the rights of the Possessory Conservator.
Possession
The second part of the kid is "Possession and Access." Essentially this is who has the child at any given time.
The Texas Legislature has specific a Standard Possession Order. Recently this was modified to provide a possession order for when conservators live under 50 miles from each other, from 50-100 miles, and for over 100 miles apart. The main difference between the first two options are start and end time. The third option for over 100 miles allows for the conservator that is not the primary residence to elect from two different options for possession times.
In short form- the Standard Possession Order grants a conservator that is NOT the primary residence conservator possession of the child as follows:
- During School Year: every Thursday and the 1st, 3rd, and 5th weekends of the month.
****Note: Weekends are counted by Friday. You look at a monthly calendar, and the first Friday of that month is the first weekend. Sometimes the 30th or 31st day of the prior month falls on a Friday, that would make that weekend the 5th weekend of the prior month. The conservator would then get the immediately following weekend as the first weekend of the next month.
- During Summer: the 1st, 3rd, and 5th weekends and 30 days that can be designated, but if no designation then the month of July.
There are some exceptions and special rules within the Standard Possession Order, but the outline above is the general form of the Standard Possession Order.
A conservator can also be granted an Expanded Standard Possession Order. This designation means that all periods of possession during the school year start at the time school is released and continue until the next day school resumes. Otherwise, a Standard Possession Order will start the possession periods and end the possession periods at 6:00 pm.
The Court is limited in what possession periods can be ordered. The presumption is that the Standard (or Expanded Standard) Possession Order is in the best interest of the child. To vary from that can be a feat and requires some legally factual reasons to modify that schedule.
However, conservators may be agreement customize any type of schedule that would work for them. Working together amicably, or through a professional if necessary, can be vital to having a schedule where the conservators actually get quality time to spend with the child.
Lacy Kimball strives to customize possession schedules that actually work for the parties involved and often times proposes very custom schedules based on the work schedules of the conservators and activities of the child.
Support
The third part of the kid is "Support." Who pays what.
Both conservators are responsible for the financial support of the child, but he non-primary conservator will be ordered to pay child support to the other conservator to help support the child. This is essentially to help support the costs of the child for the extra time the child is not in the non-primary conservator's care.
Child support is designated by law to be a percentage of the conservator's net resources. "Net resources" is defined in Texas Family Code 154.062. This can include not only normal wages, but bonuses, gifts, and other sources of value that are included in the total yearly value and then averaged over the 12 months to determine the amount that child support will be based on.
The guideline amounts are percentages of the obligor's net resources, i.e. one child is 20%. There is a table established to designate the percentage based upon the number of children the obligor has.
Child support can be ordered or agreed upon to vary from the guideline amount as well. This could be to order less than the guideline amount (usually by agreement) or award more than the guideline amount.
In addition to child support, the Texas Legislature has specified the the child must have medical and dental coverage. If the primary conservator provides this coverage, the non-primary conservator may be ordered to pay medical support in addition to child support for the monthly premium. In the alternative, the non-primary conservator may be ordered to obtain or maintain coverage for the child. Uninsured expenses will also be delineated in percentages for which conservator is responsible for those costs.