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What Parents Need to Know about Guardianship vs. Custody

In the realm of family law, terms like custody and guardianship are often used interchangeably, leading to confusion about their distinct meanings. Further, different states use these terms differently, so information you are gathering from “guardianship” in California will be very different than a guardianship in Texas. Understanding the differences is crucial, especially for parents in the throes of divorce and facing child-related legal matters in Texas. 

At Hargrave Family Law, we recognize the importance of clarity in these matters, so let’s delve into the nuances of custody, guardianship, and how they intertwine in the context of Texas family law.

Custody in Texas: A Multifaceted Concept

In Texas, child custody is not really a term, though many people use it to refer to anything child related. However, “conservatorship” is a term we use to refer to the rights and duties a parent has in relationship to his or her child. In Texas, it is presumed that both parents will be Joint Managing Conservators (however, this presumption can be outweighed if a parent poses a danger to a child). Conservatorship outlines the rights and responsibilities each parent holds. 

Conservatorship in Texas covers decision-making authority (i.e.,legal custody) and the physical living arrangements (physical custody) for the child. The Texas Family Code delineates several types of custody arrangements:

  1. Joint Managing Conservatorship: This is a common arrangement where both parents share decision-making responsibilities, although the child may primarily reside with one parent. Joint Managing Conservatorship means that the parents share in decision making, but it does not mean that the rights are equal. The rights that often become the subject of a custody dispute are: whether one parent will have the exclusive right to designate the primary residence of the child, how decisions will be made regarding the child’s education (e.g., where the child attends school, testing and tutoring, special services), who can consent for an invasive medical procedure, and who can consent to psychological and psychiatric treatment of a child (e.g., therapy). 
    • These rights are often subject to the “joint agreement” of the parents, but they can also be independent (either parent can consent), or exclusive to one parent. Note that just because the parents have “joint managing conservatorship” does not mean that they will share equal time with the child. These arrangements will depend on your specific circumstances and what the court may decide based on those circumstances and the child’s best interest.
  2. Sole Managing Conservatorship (sole custody): In this scenario, one parent has the exclusive right to make major decisions for the child, with the other parent potentially having only the right of access to a child at defined times. Sole child custody in Texas is typically awarded if one parent is considered unfit for any legal or physical custody, often due to reasons such as a criminal record, substance abuse, neglect, abuse, domestic violence, or other disqualifying factors. In some instances, sole custody may be agreed upon by both parents and deemed in the best interest of the children by the court.
  3. Possessory Conservatorship: When one parent is named as Sole Managing Conservator of the child, the other parent is often referred to as the Possessory Conservator if that parent has some rights of access to the child (even if those rights are very limited). A Possessory Conservator is entitled to “possession”, and typically is not entitled to make decisions on the child’s behalf. It is important to note that while the Possessory Conservator may not be making decisions, as a parent, he or she nevertheless has the right in most situations to access educational, health and other records of the child; he or she has the right to attend activities of the child; and he or she has the right to be listed as an emergency contact for the child.
    • If you are involved in a case where one parent is the Possessory Conservator, it’s important to understand what rights the parent Possessory Conservator will have, and whether those rights should be further limited or extended.
  4. Temporary Conservatorship: Often, it is necessary for the parties to ask the Court to make orders when a divorce case is pending, before a final order is entered. Temporary arrangements regarding rights and duties, possession and child support will set the “status quo” while the case is pending. While these arrangements can be agreed by the parties, it is not unusual for the parties to need a hearing and ask the court make decisions about rights and duties, possession and child support. A temporary orders hearing is a full evidentiary hearing, and in many cases is the only time the parties will appear in court before the case is finalized.
  5. Split Custody: Split custody is easier to explain when there is more than one child, and each parent has full physical custody of one child. Factors like the children’s age and preferences may influence this arrangement. Split custody is definitely not the preferred arrangement by the courts. In most cases, the judges want to keep the children together. However, there are times when for a variety of reasons it may be necessary for the children to live in separate residences.

Guardianship in Texas: A Different Legal Framework

Guardianship, on the other hand, pertains to legal responsibility for someone who is incapacitated, typically a minor or an adult unable to make decisions for themselves. To obtain legal guardianship, there will be a formal court process involving a hearing, evidence of the incapacity, and the court appointing a “guardian.”

For example, when a child with special needs reaches the age of eighteen, he or she may need to have an adult appointed (who may be a parent) to help make decisions regarding the adult child’s well-being, medical care, education, and other critical aspects of life. When a parent dies or is incapacitated, the parent may appoint a guardian of the child if the other parent is not alive or able to care for the child. Guardianship proceedings are typically handled in probate court, not family court, and are governed by the Texas Estates Code (not the Texas Family Code). 

There are two basic types of Guardianship:

  1. Guardianship of the Person. Guardians of the Person will be responsible for their ward’s well-being, physical and mental health. They may be asked to assist with getting their ward to the doctor’s appointments, to making sure they show up for appointments, and getting medication.
  2. Guardianship of the Estate. Guardians of the Estate will be responsible for managing their ward’s financial affairs and property. It is possible for a guardianship to awarded over the ward’s financial affairs, but not the person, if the ward is able to take care of their physical well-being.

Distinguishing Between Conservatorship and Guardianship

What are some of the main differences between custody and guardianship?

  • Nature of Relationship: Conservatorship involves the parent-child relationship. Conservators are almost always parents, though it is possible for a non-parent (e.g., a relative, grandparent, close friend, or state agency) to be appointed as a conservator if the child does not have a fit parent. Guardianship involves decision-making of an adult, who for whatever reason, is incapable of making decisions for himself or herself.
  • Decision-Making Authority: Both Conservatorship and Guardianship pertain to who has the rights to make what decisions over the person. In Conservatorship, the person is a minor. In Guardianship, the person is an adult. 
  • Initiation: Conservatorshipis typically addressed during divorce or separation proceedings, while guardianship may be sought when an adult is unable to care for himself or herself.
  • Duration: Once conservatorship decisions are made in a final order, they remain in place unless the need arises to change the original provisions. However, in a guardianship, the guardian will have ongoing responsibilities to report to the probate court regarding the ward. There is much more judicial oversight in a guardianship proceeding, than in a conservatorship proceeding.

Understanding the distinctions between custody and guardianship is pivotal for parents navigating the complexities of family law in Texas. At Hargrave Family Law, we are committed to providing guidance and support to families in Texas facing these challenges. If you find yourself in need of legal assistance, don’t hesitate to reach out. Together, we can work towards ensuring the best possible outcome for you and your children.