Parental Authority

When parents live together it is assumed that they are making decisions concerning their child cooperatively and acting in their child’s best interest and there is no need for a court order. When parents split up or the parents are not acting in their child’s best interest the law allows a court to make an order for conservatorship of that child. Who may file an original lawsuit for conservatorship of a child is governed by Texas Family Code §102.003.

In the context of a divorce involving children, a suit affecting the parent-child relationship is pleaded together in the same cause number as the divorce and the issues are presented to the court together. In cases where parents are not married a stand-alone suit affecting the parent-child relationship (SAPCR) can be brought by either parent. The result of an original SAPCR, in or out of a marriage, is an order commonly called a “Parenting Plan.” The court can make a temporary order including a parenting plan and the court can make a final order including a parenting plan.

A Parenting Plan has a number of anatomical features and I’ll go through them briefly. Note that every case is different and the courts have broad discretion to customize to this framework and parties can agree to a plan best suited to their specific needs.

PARENTAL AUTHORITY & CONSERVATORSHIP

First a parenting plan provides for the appointment of conservators and allocation of decision-making authority. The law presumes that parents be appointed Joint Managing conservators and share in the rights and responsibilities of rearing their children.

There are baseline rights that a parent has by virtue of being appointed a conservator, unless the court curtails these rights.

Sec. 153.073. RIGHTS OF PARENT AT ALL TIMES. (a) Unless limited by court order, a parent appointed as a conservator of a child has at all times the right:
(1) to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
(2) to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
(3) of access to medical, dental, psychological, and educational records of the child;
(4) to consult with a physician, dentist, or psychologist of the child;
(5) to consult with school officials concerning the child's welfare and educational status, including school activities;
(6) to attend school activities;
(7) to be designated on the child's records as a person to be notified in case of an emergency;
(8) to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
(9) to manage the estate of the child to the extent the estate has been created by the parent or the parent's family.
(b) The court shall specify in the order the rights that a parent retains at all times.

Management rights forming the core of parental authority are also enumerated in the Family Code. Here the court allocates decision making authority between the parents. In doing so the Court can order that parents must make each of these decisions “jointly by agreement” meaning they must agree on a course of action. The court can order that the parents can make any enumerated decision “independently” with or without discussing it with the other parent. The court can also order that only one parent may make all decisions or any specific decision “exclusively” with or without conference with the other parent.

The management rights are as follows:

(1) the right to designate the primary residence of the child;
(2) the right to consent to medical, dental, and surgical treatment involving invasive procedures;
(3) the right to consent to psychiatric and psychological treatment;
(4) 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;
(5) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
(6) the right to consent to marriage and to enlistment in the armed forces of the United States;
(7) the right to make decisions concerning the child's education;
(8) the right to the services and earnings of the child; and
(9) 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.

SPECIAL NOTE: “Joint Custody” and “Full Custody” are not legal terms.

Custody, or more properly “conservatorship,” describes a bundle of rights held by a person with respect to a child and has two general dimensions – legal and physical.

Put another way, a conservator has legal authority to make decisions for a child and a conservator has a right to physical possession of a child. The latter usually is called “parenting time.”

The lay term “Joint custody” usually means that the parents are making the management decisions cooperatively, or that that is the goal at least.

A parent appointed Sole Managing Conservator has all of the above management rights exclusively by definition. From an authority point of view, this is probably closest to the looser lay term “full custody” or sole custody.

The person appointed with the rights (1) and (4) is commonly called the “home parent,” and often this person keeps the fort from which the children go to school during the week. The other parent is called the “co-parent” and has possession of the children on a schedule.

QUESTION: What is the difference between terms “home parent,” “primary parent,” and “custodial parent” on the one hand and “co-parent,” “other parent,” and “non-custodial parent” on the other?

ANSWER: Home parent, primary parent, and custodial parent are the same thing and describe the same person. Similarly co-parent, other parent, and non-custodial parent are the same thing and describe the same person. These terms vary in legal and courtesy usage, and in therapeutic register, by code, agency, and speaker.

The prevailing momentum of the lingo at the courthouse appears to be drifting from “primary” and “other” to home parent and co-parent. This is probably on account of the legislature and the lobbyists, in the good sense, taking a greater interest in hearing from child development specialists. As far as form and style goes, I’m for home parent and co-parent. I think it’s dignified and egalitarian and asks everyone to rise to the occasion. It at least aspirationally describes what split-up parents ought to be doing.