Texas Primary Custody: What Does That Really Mean?

In Texas, courts typically appoint both parents as “joint managing conservators” or “JMCs” for their children.  What does this really mean though?

“Conservatorship” simply means the parent’s right to make certain decisions for the child, including decisions about medical care, mental health care, and educational decisions.  The presumption is that both parents should share these rights so that each has a say in important decisions concerning their child, in the absence of an emergency or other factors (which will be a topic of future blog entries here).  See Tex. Family Code § 153.131.

So, if the parents are joint managing conservators, how do we determine which parent has “primary custody?” 

Although that term is used by many parents to describe their status, it is not an actual legal term recognized in Texas.  The closest standard for determining which parent is “primary” relates to the court’s decision (or the parties’ agreement) to grant one parent the exclusive right to designate the child’s “primary residence.”  That parent is also generally the parent who has the exclusive right to receive child support. 

So, in Texas, the term “primary custody” is somewhat misleading.  Parents who are appointed as JMCs are usually under a Standard Possession Order or “SPO” where the child spends only a little more time with one parent than the other, once all the days and hours are added up.  It is even common for parents to agree to a possession order in which the children reside an equal amount of time with each parent.  In these circumstances, neither has “primary custody,” but one parent will still have the exclusive right to determine the child’s primary residence. 

Article by Austin Lawyer Cynthia W. Veidt 

How Does the Texas Standard Possession Schedule Handle Summer Vacations?

Under the Texas Standard Possession Schedule, distance affects the number of days of each parent’s possession during the child’s summer vacations. 

When the parents reside within 100 miles of each other, the possessory conservator (the one with whom the child does not primarily reside) has up to 30 days of possession during the summer months.  Under the default rule, the possessory conservator will have possession of the child beginning at 6:00 p.m. on July 1st until 6:00 p.m. on July 31st. 

If the parents live more than 100 miles apart, however, the possessory conservator is entitled to have possession for up to 42 days during the summer months.  Unless otherwise provided, the possessory conservator will have possession of the child beginning at 6:00 p.m. on June 14th until 6:00 p.m. on July 27th. 

By:  Cynthia W. Veidt and Erin Zeiss

Grounds for Annulment in Texas: Under Influence of Alcohol or Narcotics

A marriage may be annulled if, at the time of the marriage, the person seeking the annulment was under the influence of alcohol or narcotics and did not have the capacity to consent to the marriage. However, it is important to note that, the person seeking the annulment cannot have voluntarily lived with the other person to the marriage since the effects of the alcohol or narcotics ended. So a person regretting a marriage six weeks after the fact cannot claim that he or she was intoxicated and seek an annulment if they have been living together since the marriage.

References: Texas Family Code 6.105

Article by Sarah F. Berry, Attorney

Grounds for Annulment in Texas: Marriage of Person Under Age 18

A marriage may be annulled if one of the parties to the marriage is 16-17 years of age and did not obtain prior parental consent or a court order. (If one person is younger than 16 the marriage is void). A petition for annulment may be filed by a parent or guardian on the minor’s behalf, but must be filed before the minor’s 18th birthday. In determining whether to annul the marriage, the court will consider facts concerning the welfare of the parties and whether the wife is pregnant.

References: Texas Family Code 6.102 – 6.104, 6.205

Article by Sarah F. Berry, Attorney

Grounds for Annulment in Texas

Generally, under Texas law, a marriage can be annulled if, at the time of the marriage:

1. Marriage of Person Under Age 18: one party was under the age of 18 years old

2. Under Influence of Alcohol or Narcotics: the person seeking the annulment was under the influence of alcohol or narcotics

3. Impotency: one of the married persons is permanently impotent

4. Fraud, Duress or Force: the person seeking the annulment entered the marriage under fraud, duress, or force

5. Mental Incapacity: one of the married persons did not have the mental capacity to consent to marriage or understand the nature of the marriage ceremony

6. Concealed Divorce: the person seeking the annulment discovers the other person concealed they were divorced within 30 days before the marriage

7. Marriage Less than 72 Hours after Issuance of License: the marriage took place less than 72 hours after the license was issued

The articles following later this month will discuss in detail the grounds for an annulment in Texas.

References: Texas Family Code 6.101 – 6.206

Article by Sarah F. Berry, Attorney

Can I Seek Custody of Someone Else’s Children?

Blended or complex households may involve raising step-children or even the children of friends and other non-relatives, often for a variety of practical economic and social reasons. But typically a non-relative does not have the legal right (called “standing”) to seek a court order for custody or to be appointed as that child’s conservator.

However, the Texas Legislature has recognized that, under certain circumstances, a non-relative can have enough involvement in a child’s life to be entitled to seek rights typically reserved for that child’s parents or other relatives.

Specifically, a person who has “actual care, control and possession” of a child for at least six months can file a petition to seek to be appointed as that child’s conservator, even when the child is not related by blood or marriage. The petition must be filed within 90 days of the child leaving the applicant’s actual care, control and possession. In this situation, “actual control” means that the applicant had power or authority to guide and manage the child.

So, for example, if the child of a friend has lived with you during the past year while attending school with your own children, and that friend is unable to return to care for the child (due to death, illness, financial misfortune, or other circumstances), you would have standing to file a petition asking the court to appoint you as the child’s managing conservator. Often, this arrangement can be temporary and does not involve terminating the rights of the child’s actual parents, but provides you with legal rights and authority (as described in the court’s order) related to the child’s care, possession and upbringing.

Article by Cindy Veidt.