An ORIGINAL Child Custody Case is one where there is no existing court order. This happens with divorce as well as breakups if a couple is not married. The public policy of this state is to: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their 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 as well as possession of the child. The legal term for joint custody is Joint Managing Conservatorship. The presumption under the law is that Joint Managing Conservatorship is in the best interest of the children.
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 party with this right automatically receives child support from the other parent. This is the possession part, or “custody” part, as most people know it, of conservatorship. 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 custodial and non-custodial Conservator. During the Original Proceeding, the Judge will decide (or the parties will agree) as to which “rights” to the child you share (or don’t share) with the other parent. These include, non-exhaustively, the following rights:
The right to receive information from the other parent regarding the health, education, and welfare of the child;
The right to consult with a physician, dentist, or psychologist of the child;
The right to be designated as a person to be notified in an emergency at school;
The right to attend school activities; or
The right to make decisions concerning the child’s education.
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 parents 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, necessarily.
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