Does Primary Custody Exist?
Usually a misnomer due to its frequency in popular culture, “primary custody” is not an actual legal term recognized in Texas. Texas courts will typically appoint both parents as “joint managing conservators” or “JMCs” for their children, and what people commonly refer to as “primary custody” tracks most closely with the party who is granted an exlusive right to determine “primary residency” of the child.
To better understand this concept, I find it helpful to think about all the different rights and duties of a parent as strands of a rope. Prior to court involvement, all those rights and duties are “together” unified with both parents. Both parents have the full complement of rights and duties at all times, and neither parent has any authority to stop the other from exercising those rights, or conversely the obligation to take any particular action in regards to the child. There are pros and cons to this situation, but the main downside, and the one that the court most specifically tries to address, is that in the event of a disagreement there is no clear way to make a decision or to break a tie. If parents are on the same page, this often isn’t an issue at all as there is communication, compromise, and a mutual desire to do what is best for the child; however, if the parents are not on the same page, it is quite important to have predictiblity in knowing who is in charge in a given situation.
Therefore, a custody order (often called a ‘Final Decree of Conservatorship”) will spell out in detail as many different eventualities as possible and which parent has which rights and duties in those given situations. The parent’s right to make certain decisions for the child, including decisions about medical care, mental health care, and educational decisions is defined as “conservatorship.” Under Tex. Family Code § 153.131, Texas courts presume that both parents should each have a say in important decisions concerning their child, in the absence of an emergency or other factors, and to share in equal custody. (For a discussion on the factors see previous blog entry on best interest of the child factors). However, there is one particular right that tends to be highly contentious, and from which a lot of other rules and laws are based: “the exclusive right to determine primary residence of the child”.
The Exclusive Right to Determine Primary Residence
In Texas, even if all other portions of the custody agreement are completely equal, and possession is split 50/50, the parent with the exclusive right to determine the primary residence of the child is considered by most entities to be the “primary parent”. With this usually comes the ability to collect child support from the other parent (often even if possession is split 50/50) as well as the perceptual benefits that come along with being the primary parent. This right is the one that is most often fought over because of all of the implications that come with it, but also because it is one of the few rights that cannot be divided particularly easily. Many of the other decision making powers can be done by agreement, but the right to determine the primary residence most always resides with one parent or the other, and in a divorce, can effectively set both parents at odds with each other before the process even starts (very often to the detriment of the child).
Under the “primary residence” rule, parents who are appointed as JMCs are usually under a Standard Possession Order or “SPO” where the child, once all the days and hours are added up, spends only a fractional amount of time more with one parent than the other. In these circumstances, neither parent has “primary custody,” at least as most people think about it, but one parent will still have the exclusive right to determine the child’s primary residence. It is common, and encouraged for parents to create and agree to a possession order in which the children reside an equal amount of time with each parent. In many states, there is a push towards different visitation styles that allow for a closer to 50/50 split of time and to do away with the concept of having one parent with a superior position to the other, however, I have not seen that be particular common here in Texas yet. I suppose as a divorce lawyer, the fact that the system defaults to a somewhat adversarial position is good for business; however, on a more personal level, I do hope that there are more efforts in the future to focus on the “joint” part of joint managing conservators rather than putting so many eggs in the “exclusive right to determine primary residence” basket.
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