So you want sole custody?? Part One

As a Dallas divorce lawyer, I frequently have clients that come into my office wanting “sole custody.”  Custody is a term that means different things to different people.  In this series of blog posts, I’ll explain how “custody” is determined in Texas.  The first post in this series will define the words Texas courts use in determining custody issues. 

In Texas conservatorship is the term that equates with custody.  Chapter 153 of the Texas Family Code sets forth the framework for appointing individuals as conservators and granting rights of possession and access to a child. 

There are two types of conservators: managing and possessory.  Managing conservators are further divided into two sub-categories, sole and joint.  A sole managing conservator is a person that is granted exclusive rights to make decisions for the child.  A joint managing conservator is one of two people who share the rights and duties of a parent, even if the exclusive right to make certain decisions (for example, the place of the child’s primary residence) is awarded to only one person.  A possessory conservator is a person who is designated by the court as having a right to possession of a child under specified conditions, and who is authorized during their periods of possession to exercise certain rights of a parent.  A very common misconception regarding joint managing conservators is that each parent must have equal periods of possession.  Also, a possessory conservator can exercise his or her periods of possession to the exclusion of a managing conservator. 

Now that we have the basic definitions down, we’ll look at how a court determines the rights and duties of parents and the periods of visitation to the child.  From the get go, it’s important to understand that the best interests of the child is the most important factor the court looks at when deciding issues of conservatorship, possession and access.  To establish a child’s best interests, parents usually are required to present evidence showing who can better serve the child’s interests. 

Approximately 30 years ago, the Texas Supreme Court identified a non-exclusive list of factors the court will consider in determining what is in the child’s best interests.  These factors are commonly called the “Holly Factors” because of the name of the case they were identified in.  Generally, the Holly Factors fall into three categories: (1) caring for the child; (2) maintaining family relationships; and (3) parenting skills. 

In the next post, I’ll write about the specific items courts consider in assessing the three main Holly Factors.

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Comments (2) Read through and enter the discussion with the form at the end
Cheap Texas Divorce - September 26, 2009 2:07 PM

Great article. When clients cannot afford their divorce, they can see us, we can help.

Michelle May O'Neil - September 28, 2009 10:56 AM

In response to the comment posted above, I think people should be very wary of handling their divorce themselves, and especially through such "services" as cheap texas divorce. Often there are intricacies in a divorce that a nonlawyer will not know about. For a couple who has no children and absolutely no property, handling a divorce without lawyers might work. But, if there's any propery (like a retirement account or a house), then an attorney really should be involved. Lawyers receive years of training to learn about the various ways of dividing specific types of assets and debts. I've had several opportunities to assist people who have tried to handle their own divorce, only to find that something was not done correctly and then they have to pay my firm extra to try to fix the mistake. Bottom line is, if a couple has children or assets or debts, it is best to find a family law professional to assist with the divorce.

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