There is a lot of confusion regarding the difference between joint and sole managing conservatorship in Texas and what exactly they both mean. Let’s begin with the meaning.
Sole managing and joint managing conservators does not mean sole custody or joint custody. Conservatorship in Texas is simply a designation of who has the right to make certain decisions regarding a child and who has what duties. The Texas Family Code specifically lists the rights of a conservator. In a joint managing conservatorship these rights are split between the parties either as the parties agree or as the judge decides. Typically, in a standard order, the rights are split independently which means that each party maintains all these rights.
A person with “sole managing conservatorship” has the rights and duties as set out in section 153.132 of the Texas Family Code. This person exercises these rights exclusively and does not share them with the other parent. The other parent is termed the “possessory conservator” and has limited rights (see section 153.192 of the Texas Family Code).
So how do you know who has “custody”? The person who has custody as most people know it is the person who has the exclusive right to designate the primary residence of the child. In a joint managing conservatorship that person is called the “primary” joint managing conservator. In a sole managing conservatorship the sole managing conservator has this right exclusively.
So as you can see, you can be a joint managing conservator but not have the right to determine the residence of the child (or custody as most people refer to it).
How is it determined which type of conservator a parent is named? In Texas it is presumed that the parents will be appointed joint managing conservators of a child. This means that in most cases the parents will be named joint managing conservators and the rights and duties set out above will be split. This rule can be found in section 153.131 of the Texas Family Code. That is in most cases. Although it is presumed that the parents will be joint conservators, the presumption can be attacked with the proper facts. If the facts show that the child’s emotional or physical health would be significantly impaired by appointing the parents joint conservators, then the court will appoint a sole managing conservator.
The facts necessary to attack the presumption are different for each case and each judge. There is no easy answer to what facts are necessary.
Once conservatorship is decided, who makes what decisions, the next step is determining what possession schedule each party will have. I have discussed standard visitations in many different places on this blog.
I hope this sheds some light on the issue of conservatorship vs. custody.