The custody and possession of children often become the most emotional decisions the parties must make in a divorce. Protecting children from the adverse effects of a Texas divorce is a job that most Texas parents take seriously.

“These are the questions that parents consider at difficult times like these,” says Carson Steinbauer. “Who will be the managing conservator(s) and have primary possession of the children? Will the parents be joint managing conservators or will one be a possessory conservator? What are each parent’s legal rights and duties concerning the children under Texas law? How will parenting time with the children be shared between the parents? What geographic area will the children live in? Who will pay child support and children’s expenses? How will major decisions be made affecting the children?”

While parents educate themselves on the Texas divorce process itself, it is very important that they become familiar with the processes regarding children.

Under Texas law, custody is broken into two different concepts, each with different legal rights and duties: (1) conservatorship and (2) possession/access to the child. These are not the same. A parent, other adult (i.e. grandparent, other relative, etc), or agency may have one, both, or neither.

Legal custody means that parents have the right and obligation to make decisions about the upbringing and welfare of children. Physical custody means that parents have the right to possess or have access to children. Legal and physical custody are not the same, because while one person may have physical custody of the child, they may have limited, or no, legal custody.

In most cases, parents are awarded joint custody, where both are given the right to be involved in the decision making process. This does not necessarily mean that the parents share equal time with, or have equal access to the child.

In some cases, one parent may be appointed as the sole managing conservator, with the majority of the rights and duties of a parent, while the other parent is appointed as a possessory conservator, meaning that person only has the right to possession and/or access to the child and limited rights or duties. In other words, one parent will have sole legal custody, while the other has visitation rights.

Often, when a parent initiates a suit for child custody or for a Texas divorce, a temporary order is set in place to define the terms of custody, possession, access, rights and duties, until a final order or final decree of divorce takes the place of the temporary order. Both parties may agree on the temporary order and it may not be the same as the final order.