When a mother goes through a divorce, her first concern is almost invariably for her children, which is as it should be. How often will I be able to see my children? Who will make important decisions for their well-being? How will they be able to handle these drastic changes in their lives? The questions and worries are too numerous to count, and the concerns are valid. For the most part, these issues are all determined by two things, conservatorship and possession and access. This article will focus on the concept of conservatorship.
“Conservatorship” is how the court defines the roles that each parent will play in their children’s lives. More specifically, it defines who is permitted to make what decisions for the children and who has what duties or obligations related to the children. There are three kinds of conservatorship: Sole Managing Conservatorship, Possessory Conservatorship, and Joint Managing Conservatorship. In any given case, either both parents will be named “Joint Managing Conservators” or one parent will be named the “Sole Managing Conservator” and the other will be named the “Possessory Conservator.”
The title of “Sole Managing Conservatorship” is awarded to only one parent. That parent is granted the exclusive right to make all decisions for the child or children to the exclusion of the other parent. Those decisions include, among other things, medical decisions, educational decisions, the right to consent to the child marrying before the age of 18 years, and the right to designate the primary residence of the children. The other parent in this situation is known as the “Possessory Conservator.” This person typically will not have the right to make any decisions for the children. However, he or she will usually still have certain duties when the children are in his or her care, such as the duty to direct the moral and religious training of the children.
“Joint Managing Conservatorship,” or JMC, is the most commonly awarded type of conservatorship. When awarded, Joint Managing Conservatorship is awarded to both the mother and the father of the children. Under JMC, the rights and duties of the parents are generally shared, although there are an infinite number of ways that the rights and duties can be allocated within the final order of the Court. There are three different types of rights and duties: exclusive, subject to the agreement of the other parent conservator, and independent.
When a right is an “exclusive” right, the parent with that right does not have to consult the other parent about that decision to be made and has the right to move forward on that decision without taking any other steps. Further, the other parent cannot make any decisions or act on any decisions involving that issue without first obtaining consent from the parent who has the exclusive right to make that decision. For example, a parent who has the exclusive right to make educational decisions may change the children’s school without the other parent’s permission, or even against the other parent’s will. This is, of course, presuming there is nothing else written into the court order regarding where the children will attend school.
A right is “subject to the agreement of the other parent conservator” when, as it states, the other parent’s consent must first be obtained before a decision can be made. A common example of this involves decisions regarding invasive medical procedures. Usually, unless there is an emergency, a parent cannot consent to an invasive medical procedure such as surgery without first obtaining consent from the other parent. So, if a child needs surgery to repair an injured knee, both parents will have to agree that the surgery should be done. However, if a child needs immediate surgery to save his or her life or prevent permanent and lasting damage to the child, then the other parent’s consent is not necessary.
A right is “independent” when that right or duty can be exercised without the other parent’s consent but not to the exclusion of the parent, meaning that the other parent also has the same right or duty. These rights and duties usually involve situations that arise when the children are in that parent’s possession or control. For example, most parents have the independent duty to provide food and shelter for the children while they are in that parents care. Also, most parents are awarded the independent right to represent the children in legal action or to act as their agent.
What rights and duties are awarded to each parent varies drastically from decree to decree. For obvious reasons, conservatorship and the division of the parents’ rights and duties are often the most hotly contested issues in any divorce. They may even continue to be a point of contention after the divorce is final through modifications of the order. It is extremely important that parents carefully review any proposed agreements or orders regarding these rights and duties and that they fully understand what rights and duties they are receiving or giving up before signing anything. The consequences of these decisions are far-reaching and can have either positive or detrimental effects upon your children.