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Joint Managing Conservatorship
It is the public policy of Texas to ensure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; to provide a safe, stable, and non violent environment for the child; and to encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage. Current Texas law presumes that appointment of a child’s parents as joint managing conservators is in the child’s best interest, unless there is a finding of a history of family violence involving the parents. The parties may enter into a written agreement containing provisions for appointment of joint managing conservators under Code section
If both parents are appointed joint managing conservators of the child, either by agreement between the parties or by court order, the court shall specify the rights and duties of a parent that are to be exercised by each parent independently, by the joint agreement of the parents, and exclusively by one parent. Each parent appointed conservator has at all times, as specified by court order, the right to receive information from the other parent concerning the health, education, and welfare of the child and the right to confer with the other parent to the fullest extent possible before making decisions concerning the health, education, and welfare of the child.
Joint managing conservatorship is defined as the sharing of the rights and duties of a parent by two parties, ordinarily the parents, even if the exclusive right to make certain decisions may be awarded to one party. The Code provisions concerning joint managing conservatorship also apply to a joint managing conservator who is not a parent of the child. Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child to each of the joint conservators. The best interest of the child ordinarily requires the court to designate a primary physical residence for the child. The standard possession order in Code sections 153.311-.317 sets out a presumptive minimum amount of time for possession of a child by a parent who is named a joint managing conservator but not awarded primary physical residence.
If a written agreement of the parents is filed with the court, the court shall appoint the parents joint managing conservators only if the agreement designates the conservator who has the exclusive right to establish the primary residence of the child and either establishes, until modified by further order, the geographic area within which the conservator shall maintain the child’s primary residence or specifies that the conservator may establish the child’s primary residence without regard to geographic location; specifies the rights and duties of each parent regarding the child’s physical care, support, and education; includes provisions to minimize disruption of the child’s education, daily routines, and association with friends; allocates between the parents, independently, jointly, or exclusively, all the remaining rights and duties of a parent as provided by Code Chapter 151; is voluntarily and knowingly made by each parent and has not been repudiated by either parent at the time the order is rendered; and is in the best interest of the child. It is unclear whether this right to repudiate under section 153.133(a)(5) is in conflict with the alternative dispute resolution procedures set out in TFC § 153.0071(d), which makes a mediated settlement agreement binding on the parties if the agreement meets certain specific requirements.
If a written agreement of the parents is not filed with the court, the court may appoint the parents joint managing conservators only if the appointment is in the best interest of the child, considering these factors: whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators; the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest; whether each parent can encourage and accept a positive relationship between the child and the other parent; whether both parents participated in child rearing before the filing of the suit; the geographical proximity of the parents’ residences; if the child is twelve years of age or older, any preference of the child regarding the appointment of joint managing conservators; and any other relevant factor. The relationship between this provision and the presumption in favor of joint managing conservatorship stated in section 153.131(b) is unclear.
The appointment of joint managing conservators does not impair or limit the authority of the court to order a joint managing conservator to pay child support to another joint managing conservator. An order of joint conservatorship, in and of itself, is not grounds for modifying a support order.
The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect or of physical or sexual abuse by one parent directed against the other parent, a spouse, or a child.
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Jerry W. Melton, Attorney At Law
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