In my previous two posts I defined the terms commonly used in custody determinations and the factors courts consider in determining custody. Now that we have these housekeeping issues taken care of, I’ll discuss the presumptions that apply in conservatorship determinations and the hurdles parents have to overcome in getting "sole custody."
It is presumed that appointment of both parents as joint managing conservators is in the best interest of the child. The rationale behind this is that the appointment of both parents as the child’s conservator provides the child with the best care and opportunities, as well as the best environment for the child’s mental, moral and emotional development. Texas courts should also, but are not required to do so, consider Texas public policy which aims to: (1) ensure that children have frequent and continuing contact with both parents; (2) provide children with a safe and stable environment; and (3) encourage parents to share in the rights and obligations in raising their children after their divorce.
If a parent seeks appointment as the sole managing conservator against the other parent then that parent must overcome the presumption that appointment of joint managing conservators is not in the best interests of the child. Note that if there are allegations of domestic violence, the parent seeking appointment as sole managing conservator is not required to rebut the joint managing conservator presumption.
In order to rebut the joint managing conservator presumption, the parent seeking appointment as sole managing conservator is required to present evidence that appointing joint managing conservators is not in the child’s best interest. This is done by looking to the Holley factors I discussed in part two of this series of posts. If the parent is successful in overcoming the joint managing conservator presumption, the other parent must be appointed as a possessory conservator unless the court finds that doing so would not be in the child’s best interest and allowing that parent to have possession or access to the child would endanger the child’s physical or emotional welfare.
If, however, there are allegations of domestic violence, then it is somewhat easier to rebut the joint managing conservator presumption. The Texas Family Code prohibits the appointment of parents as joint managing conservators if credible evidence of domestic violence is presented. Credible evidence of domestic violence is evidence that a parent has a history of past or present child neglect or a history of abuse that was directed to the other parent, a spouse or the child.
Because the burden of overcoming the joint managing conservator presumption is so great, the majority of the time the court appoints parents as joint managing conservators. When appointing joint managing conservators, the court must appoint one parent as the "primary" joint managing conservator. The primary joint managing conservator is the parent that is granted the exclusive right to designate the child’s primary residence. In determining the who to appoint as the primary joint managing conservator, the best interests of the child control.
In sum, it is difficult to overcome the joint managing conservator presumption and to obtain "sole custody" of a child. Of course, the issues presented in this series of posts pertain only to the determination of conservatorship. Once conservatorship is determined, the court must then allocate periods of possession and access to the children. Thus, even if a parent is designated as the sole managing conservator, it is likely that the other parent will be granted as a possessory conservator and have some periods of possession and access to the child.