Rights and Duties of a Parent

Section 151.001 of the Texas Family Code lays out 11 rights and duties of parents. There are 3 duties: the duty of care, control, protection, and reasonable discipline of the child; the duty to support the child; and the duty to manage the estate of the child. There are 8 categories of rights: the right to have physical possession, to direct the moral and religious training, and to designate the residence of the child; the right to consent to the child’s marriage, enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological, and surgical treatment; the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child; the right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child; the right to inherit from and through the child; the right to make decisions concerning the child’s education; except as provided by Section 264.0111, the right to the services and earnings of the child; and any other right or duty existing between a parent and child by virtue of law.

Chapter 153 of the Texas Family Code concerns conservatorship, possession, and access, and it lays out a different set of rights and duties according to the status granted the parent.

151.001 (Rights and Duties of Parent)153.073 (Rights of Parents at All Times)153.132 (Rights and Duties of Parent Appointed Sole Managing Conservator)153.074 (Rights and Duties During Period of Possession)
(1) the right to have physical possession, to direct the moral and religious training, and to designate the residence of the child;(1) to receive information from any other conservator of the child concerning the health, education, and welfare of the child;(1) the right to designate the primary residence of the child;(1) the duty of care, control, protection, and reasonable discipline of the child;
(2) the duty of care, control, protection, and reasonable discipline of the child;(2) to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;(2) the right to consent to medical, dental, and surgical treatment involving invasive procedures;(2) the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
(3) the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;(3) of access to medical, dental, psychological, and educational records of the child;(3) the right to consent to psychiatric and psychological treatment;(3) the right to consent for the child to medical and dental care not involving an invasive procedure;
(4) the duty, except when a guardian of the child's estate has been appointed, to manage the estate of the child, including the right as an agent of the child to act in relation to the child's estate if the child's action is required by a state, the United States, or a foreign government;(4) to consult with a physician, dentist, or psychologist of the child;(4) the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;(4) the right to direct the moral and religious training of the child.
(5) except as provided by Section 264.0111, the right to the services and earnings of the child;(5) to consult with school officials concerning the child's welfare and educational status, including school activities;(5) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
(6) the right to consent to the child's marriage, enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological, and surgical treatment;(6) to attend school activities;(6) the right to consent to marriage and to enlistment in the armed forces of the United States;
(7) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;(7) to be designated on the child's records as a person to be notified in case of an emergency;(7) the right to make decisions concerning the child's education;
(8) the right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;(8) to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; (8) the right to the services and earnings of the child;
(9) the right to inherit from and through the child;(9) to manage the estate of the child to the extent the estate has been created by the parent or the parent's family.(9) except when a guardian of the child's estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child's estate if the child's action is required by a state, the United States, or a foreign government.
(10) the right to make decisions concerning the child's education;
(11) any other right or duty existing between a parent and child by virtue of law

When there is a divorce and the parents dispute which parents should bear which duties and be entitled to which rights, courts start with a presumption that both parents will be appointed as joint managing conservators. Tex. Fam. Code Sec. 153.131(b).

The presumption that the best interest of the child is served by awarding custody to the parent is deeply embedded in Texas law. See Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex.1990) (citing Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex.1963) and Legate v. Legate, 87 Tex. 248, 28 S.W. 281, 282 (1894)). The parental presumption is based upon the natural affection usually flowing between parent and child. See Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 790 (1955)

In re VLK, 24 SW 3d 338 (Tex. 2000).

However, the court can only decree joint managing conservatorship if it finds that it’s in the best interest of the child.

COURT-ORDERED JOINT CONSERVATORSHIP. (a) If a written agreed parenting plan is not filed with the court, the court may render an order appointing the parents joint managing conservators only if the appointment is in the best interest of the child, considering the following factors: (1) whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators; (2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest; (3) whether each parent can encourage and accept a positive relationship between the child and the other parent; (4) whether both parents participated in child rearing before the filing of the suit; (5) the geographical proximity of the parents’ residences; (6) if the child is 12 years of age or older, the child’s preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child; and (7) any other relevant factor.

Tex. Fam. Code Sec. 153.134.

Even when there are two managing conservators, one of the parents will have “the right to designate the primary residence of the child,” and that is the parent who as a practical matter has “primary custody.”

(b) In rendering an order appointing joint managing conservators, the court shall:
(1) designate the conservator who has the exclusive right to determine the primary residence of the child…

Tex. Fam. Code Sec. 153.134(b)

If both parents are appointed as conservators of the child, the court shall specify the rights and duties of a parent that are to be exercised: (1) by each parent independently; (2) by the joint agreement of the parents; and (3) exclusively by one parent.

Tex. Fam. Code Sec. 153.071.

In extreme cases, courts will give a parent mere access, or only supervised access, when it dangerous to the child’s welfare to be in the parent’s care.

If the trial court appoints a possessory conservator, it may grant, deny, restrict or limit the possessory conservator’s possession of or access to the child, and may grant, deny, restrict or limit any rights, privileges, duties and responsibilities with respect to the child as are necessary to protect the child’s best interest…. The trial court may, for example, appoint the parent a possessory conservator and deny that parent any access to or possession of the child, if it finds that such limitations are in the best interest of the child.
In Hopkins, the trial court refused to name the appellant possessory conservator, yet allowed him supervised access. Id. at 136. The court of appeals held that a trial court refusing to appoint a parent possessory conservator could not then allow the parent access to the child because in refusing to appoint the parent possessory conservator, the trial court must have found that possession or access is not in the best interest of the child. Id. at 138.

In re Walters, 39 SW 3d 280 (Tex. App.–Texarkana 2001, no pet.)

The court is compelled to appoint the parent as possessory conservator unless it finds that (1) the appointment of the parent as possessory conservator is not in the best interest of the child, and (2a) parental possession would endanger the child or (2b) access would endanger the child. See TEX. FAM. CODE ANN. § 153.191. In sum, a finding either expressly or implicitly that access would not endanger the child’s physical or emotional welfare does not entirely preclude the court’s discretion in appointing a possessory conservator because the court could find that possession would endanger the child’s physical or emotional welfare.

In re Walters, 39 SW 3d 280 (Tex. App.–Texarkana 2001, no pet.)

Reading Section 153.191 in conjunction with Section 153.193, when a trial court appoints a parent possessory conservator, it can conclude that unrestricted possession would endanger the physical or emotional welfare of the child, but that restricted possession or access would not. The court can also conclude that access would not endanger the physical or emotional welfare of the child, but that access is not in the best interest of the child. See Hopkins, 853 S.W.2d at 137-38. It cannot conclude, however, that access, even restricted access, would endanger the physical or emotional welfare of the child, because such a conclusion would prevent the trial court from appointing the parent possessory conservator. See Roosth, 889 S.W.2d at 451.

In re Walters, 39 SW 3d 280 (Tex. App.–Texarkana 2001, no pet.)

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