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How Does the Court Decide Who Gets Custody in Divorce?

Although the legal rights and responsibilities that a parent owes to a child is called child custody in many states, it is known as conservatorship in ... 

Although the legal rights and responsibilities that a parent owes to a child is called child custody in many states, it is known as conservatorship in Texas. Parents are custodians, and the custodian of a child is known as the conservator. Unless both parents agree on a plan of custody, a family law court makes the final decision on the terms of the conservatorship.

Like join and sole custody, there are two types of conservatorship in Texas: Joint Managing Conservatorship (JMC) and Sole Managing Conservatorship (SMC). In either case, the conservatorship agreement outlines the rights that each parent has as custodian of the child. A judge decides on the nature of the conservatorship based on all kinds of factors.

Factors influencing the judge's decision include the following:

  • Parents with a history of family violence or neglect
  • Parents with a history of drugs/alcohol abuse or criminal activity
  • Parents have been absent in a child's life
  • Parents with a history of conflict (education, religion, etc.)

Protecting Your Custodial Rights as a Parent

In an amicable divorce, parents may be granted custodial rights in a JMC. However, if a parent is shown to be an unfit custodian, they may lose rights to conservatorship and the judge may grant SMC to the other parent. Conservatorship often includes rights to the following:

  • Obtain health, education, and welfare information from other parent
  • Access to medical, dental, psychological, and educational records
  • Ability to speak to physicians, dentists, and psychologists for the child
  • Consulting school officials on child's welfare and educational status
  • Give consent to medical, dental, and surgical treatment in emergencies

However, securing your custodial rights is not as simple as going through the custody proceedings. Even if you rightfully deserve those rights, it is up to the judge to see this and grant you those rights-and it is up to you to make a case for the positive role you will play in the child's life.

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