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.
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