An example of how to write a divorce decree so that the sole custody will be specific enough to work for the court is as depicted below. The sole custodian would have the child at all times, except for a couple of hours, once per week.
This post if for the type of divorce case, where both spouses agree to be divorced, and give one parent “sole custody.” The concept of sole custody is really confusing in Texas, because the common conception of the term is that one parent will get to keep a child 100% of the time. When a person calls our office wanting sole custody, it means they basically want the other parent out of the child’s life as much as possible.
First, it should be noted that the Texas Family Code does not recognize sole custody. In Texas, the phrase is that the parent is a sole managing conservator. And, even if a parent is deemed sole managing conservator, that does not necessarily mean that the other parent, called the possessory conservator, will not have substantial time with the child. This is because the designation of sole managing conservatorship refers to the rights and duties of the parent, rather than the custody schedule of the child.
In a typical joint custody situation, both parents are given basically the same rights and duties for the child. While the rights stripped from the possessory conservator will vary depending on the individual case, several exclusive rights that are usually shared, will be given to the sole conservator:
- the exclusive right to designate the primary residence of the child *(this is the only exclusive right that you usually see in a standard joint custody agreement)*
- the exclusive right to consent to medical, dental, and surgical treatment involving invasive procedures;
- the exclusive right to consent to psychiatric and psychological treatment of the child;
- the exclusive right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
- the exclusive right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
- the exclusive right to consent to marriage and to enlistment in the armed forces of the United States;
- the exclusive right to make decisions concerning the child’s education;
- except as provided by section 264.0111 of the Texas Family Code, the exclusive right to the services and earnings of the child;
- except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the exclusive right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government; and
- the exclusive duty to manage the estate of the child to the extent the estate has been created by community property or the joint property of the parents.
- the exclusive right to travel outside of the United States of America with P.E.O.
So, rather than thinking of sole custody in Texas as a way to be with the child 100% of the time, the proper way to think about it is as way to have the primary managing rights over the child.
What is the Custody Schedule When a Parent is Appointed Sole Managing Conservator?
So, the natural question then is, can the sole managing conservator simply have the child 100% of the time? Will a court allow this? The answer is that there is a presumption in Texas law against having a schedule that would not provide some minimal reasonable time with the possessory conservator
Texas Family Code §153.252. Rebuttable Presumption
Texas Family Code §153.252 provides:
“In a suit, there is a rebuttable presumption that the standard possession order in Subchapter F:
- provides reasonable minimum possession of a child for a parent named as a possessory conservator or joint managing conservator; and
- is in the best interest of the child.”(emphasis added)
Thus, in order to have a custody schedule that does not provide specific dates and times for the child, a Lawyer should write into the decree the basis for why the presumption should be rebutted.
Unless the lawyer drafts this part of the decree, the client getting sole conservatorship risks a higher likelihood that the possessory conservator will be able to modify the designation at a later date. However, this is no language, in the author’s opinion, that could be written into the decree so as to permanently and completely prevent a later possible modification if it is sought by a parent.