Child Custody

The court that handles a divorce proceeding also determines who shall have custody of any children from the marriage. The term “custody,” in a divorce, often serves as shorthand for “who gets the children.” The vast majority of parents are awarded “joint custody” in a divorce, meaning that all rights and duties concerning the children are shared. In every case, however, the court must ultimately decide what custody arrangement is in the children’s best interest.

The legal term for joint custody is Joint Managing Conservatorship, and this arrangement is presumed to be in the best interests of the children of the marriage.

However, even in the joint custody situation, the court must designate one parent who has the authority to determine the location of the children’s primary residence. This parent is called the Primary Joint Managing Conservator and also referred to as the “custodial parent,” because most Primary Joint Managing Conservators will decide that the children’s primary residence is in that parent’s home.

The other parent is called the “Possessory Conservator,” because that parent has the right to possession of the children at certain times, and is commonly referred to as the “non-custodial parent.”

Aside from the decision regarding the location of the children’s primary residence, most other major parenting decisions are shared between the Primary and the Possessory Conservator. The presumption under the law is that Joint Managing Conservatorship is in the best interest of the children.

In rare circumstances, one parent may be appointed as the Sole Managing Conservator. In this case, the other parent is still referred to as the Possessory Conservator. Generally, this occurs only if: (1) the other parent has been absent from the children’s lives; (2) there is a history of physical, psychological, or sexual abuse or neglect by other parent; or (3) there is a history of extreme conflict between the par- ents over educational, medical, or religious values. However, this does not mean that the other parent loses his or her right to visit with the children. The only rights a Sole Managing Conservator has over a Primary Joint Managing Conservator relate to the sole right to make certain decisions regarding the children’s lives, such as educational and health matters.Other legal custody arrangements that can be ordered at divorce include split custody, in which one or more children live with one parent while the remaining children live with the other parent, and divided custody, also referred to as alternating custody. This form of custody allows each parent to have the child for alternating blocks of time, often every year or two years, with equal visitation rights. Such legal arrangements are much less common. Judges are reluctant to order split custody, in particular, because of a firm belief that children should not be separated from their brothers and/or sisters as it is not in their best interest.