Conservatorship

Where one parent has primary control and care over the child, that parent is the sole managing conservator or primary custodian. Custody and conservatorship are generally interchangeable terms – some states (like Texas) use the term conservatorship rather than custody. When both parents have equal control and care over their children pursuant to the court's order, they are joint managing conservators or joint custodians.

The typical parental rights that the parents had when they were married are converted into their rights as the child's conservator or custodian. The rights are specified in the court order that appoints one or both parents as conservator/custodian of the child.

Determination of conservatorship

The judge's decision to appoint a conservator/custodian is based on the "best interests of the child." However, the court also takes into consideration:

• the child's ability to have frequent and continuing contact with their parents;
• the availability of a safe, stable, and nonviolent environment for the child; and
• the goal of encouraging parents to share in the rights and duties of raising their child after a divorce.

Best interests of the child

Since the court is charged with considering the best interest of the child in all its decisions relating to possession of and access to the child, it is generally assumed that the judge is in the unenviable position of choosing the "best" parent. The court does consider the parent's incomes, their housing situations, their personal habits, their mental stability, and the time they have available for the child. However, in deciding what is best for the child, the court examines many factors that are not related to parenting at all.

In order to determine what type of conservatorship is best for the child, the judge considers:

• the potential separation from siblings;
• the child's preference;
• the child's religious beliefs and habits;
• the child's current school situation;
• the child's access to other family members, such as grandparents;
• the access to activities in which the child is involved;
• the physical and emotional needs of the child, based on their gender;
• the child's age;
• the emotional tie between the child and the potential custodial parent;
• the ability of the parent to provide the necessities for the child;
• the current living arrangement between the parent and child; and
• the ability of the potential custodial parent to foster a healthy relationship between the child and the other parent.

I've been appointed the sole managing conservator of my children. What are my rights and duties?

As the primary custodian, you have the sole right to:

• determine your child's residence;
• consent to medical, dental, and surgical treatment, including psychiatric and psychological treatment;
• make decisions concerning your child's education;
• receive child support payments and spend the money for your child's benefit; and
• make legal decisions concerning your child.

TIP: The custodial parent can also consent to marriage and enlistment in the military.

Is a mother always awarded custody of very young children?

No. If it is not in the child's best interest to be with their mother, the court will not appoint the mother as conservator, regardless of the child's age. However, all other things being equal, young children are typically placed in their mother's care.

Sidebar: The judge is prohibited from deciding custody on the basis of sex or gender alone. The court cannot discriminate against a parent simply because they are man. However, the judge can make a finding that the child's needs are best managed by the mother. In other words, the gender of the parent can be factored in; it just cannot be the only consideration.

My ex-spouse remarried and I am still single. Will they be awarded custody of the children because they can offer a two-parent home?

No. Laws generally prohibit courts from factoring in either parent's marital status.

My ex-spouse is in a relationship with someone of the same gender. Is my ex-spouse prohibited from being appointed our child's primary custodian?

No. A parent's sexual orientation is not an automatic prohibition when determining custody of their children. The judge's decision will be based on what is in the best interests of the child.

If my children live with me, they will attend church and Sunday school regularly, participate in the church choir, and go on a mission trip to Mexico. Shouldn't the court place the children with me because they will be exposed to religion?

No. The court may consider your faith in deciding which parents gets custody, but the judge is prohibited from favoring one religion over another, or favoring one parent with religious exposure to one with no religious exposure. The court may find, however, that the church activities are in the children's best interests.

My ex-spouse is very bitter since our divorce and insists on running me down constantly in front of the children. Can the judge consider this when deciding custody of the children?

Yes. Since the best interests of the children are paramount, the court will not look favorably on placing them in a negative atmosphere. Additionally, if your spouse is attempting to interfere or undermine your ability to parent the children, the judge can find that their best interests are not served with her as the primary custodian.

Can the judge change custody from one parent to another?

Yes. The court always has the authority to modify or change any orders that affect the children. If it is in their best interests to live with another parent, the court will terminate the current custodian and appoint a new one.

TIP: Judges generally work from the assumption that modifying custody is not in a child's best interest because it is counterproductive to maintaining a stable and safe environment for the child. In other words, a parent's efforts to switch custodians must be supported by compelling new facts.