THE JOINT MANAGING CONSERVATORSHIP PRESUMPTION IN TEXAS
In 1995, the Texas Legislature modified the TEXAS FAMILY CODE to provide a presumption that both parents be appointed Joint Managing Conservators of the child (hereafter “JMC”) rather than the previous law of one parent being appointed sole managing conservator (hereafter “SMC”) and the other parent being appointed as a possessory conservator (hereafter “PC”). The term “conservatorship” is now more commonly used in the family code, as opposed to the more commonly known word– “custody.”
Currently, TEXAS FAMILY CODE §153.131 AND §153.002, provide that the best interest of the child dictates that both parents be appointed as JMCs of the minor child. TEX. FAM. CODE §153.131, even goes so far as to create a rebuttable presumption exists for appointing both parents JMCs of their children. “Mumma v. Aguirre,” 364 S.W.2d 220, 221 (Tex. 1963). The JMC presumption can be overcome by one parent, if they provide proof of domestic violence or sexual abuse by one parent against the other parent or one parent against the child, among other things. TEX. FAM. CODE §153.004.
The courts consider public policy, which seeks to ensure that children have frequent, continuous contact with both parents who have the ability to act in the child’s best interest; by providing a safe; stable; nonviolent environment for the child; and encourage parents to share in the rights and duties of raising the children after separation or divorce. TEX. FAM. CODE §153.001(A) “In re C.R.O.,” 96 S.W.3d 442, 447 (Tex. App.—Amarillo 2002, pet. denied).
The burden of proof required for rebutting the JMC presumption is proof by a preponderance of the evidence, that appointing one parent as a SMC over the parent as a PC, is in the child’s best interest. TEX. FAM. CODE §105.005, “In re W.M.,” 172 S.W.3d 718, 724 (Tex.App.—Forth Worth 2005, no pet.)
Typically when a court appoints one parent as SMC, the other parent, by default is appointed as a PC, unless there is evidence that the appointment of the other parent as a PC would not be in the child’s best interest and further, allowing parental possession or access would endanger the child’s physical or emotional welfare. Tex. Fam. Code § 153.191; “In re Walters,” 39 SW3d 280, 284 (Tex. App.—Texarkana 2001, no pet.)
REASONS FOR A PARENT TO LOSE THE JMC PRESUMPTION
EVEN THOUGH TEXAS NO LONGER HAS A CAUSE OF ACTION FOR PARENTAL ALIENATION, IT IS ALIVE AND WELL IN TEXAS COURTS (SEE BELOW)
A parent conservator’s possession or access to a child can be restricted or denied if the conservator makes a false report of child abuse or neglect against the other parent conservator. Tex. Fam. Code § 261.107(b). (emphasis added by the undersigned)
In addition, a parent conservator’s possession or access can be restricted or denied if the parent conservator engaged in parental alienation against the other parent. “In re Marriage of Harrison,” 367 S.W.3d 822,835 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (No. 14¬15-00430-CV; 6-12-18) (court found parent’s alienation can be a “guiding consideration” in possession and access determinations) (emphasis added by the undersigned)
A court can determine that a parent conservator’s possession or access be restricted or denied based upon a parent’s inability to comply and follow prior court orders made with regard to the child. “In re P.A.C.,” 498 S.W.3d 210 (Tex.App.- Houston [14th Dist.] 2016) (emphasis added by the undersigned)
TEXAS COURTS RARELY APPOINT ONE PARENT AS SOLE MANAGING CONSERVATOR AND THE OTHER PARENT AS A POSSESSORY CONSERVATOR
Indeed, it is rare, that a parent is awarded a SMC because of the child’s best interest standard, especially when the sole managing conservator is the father of the child.1 In addition, as stated above, there is a presumption in Texas law that parent conservators should jointly share in rights and duties, and decisions with regard to the child, which in part, define a joint managing conservatorship.
(Please note that Brazoria County may be a little more conservative-see footnote below)
1 A study conducted by the National Parents Organization in 2016 in Brazoria County, TX found the following: Out of 399 family court orders out of the 300th Judicial District Court that were studied:
1) 93% of the parents given primary custody were women;
2) When a visitation schedule was ordered, only 9% of those orders gave more than minimum contact with the non-primary parent. And only 5% of all order visitation schedules were 50/50.
3) Out of all the cases that awarded more than minimum visitation time only one was ordered by a judge, the rest were agreed.
4) Out of all the cases that awarded a male to be the primary parent only one was ordered by a judge, the rest were agreed.
5) Although 23% of male petitioners had attorneys, only 5% of males were awarded Primary. Compared to 21% female petitioners with attorneys and 81% of females being awarded primary. https://nationalparentsorganization.org/blog/23649-texas-data-on-child-custody-and-parenting-time-more-of-the-same