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.