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Allocating Parental Rights in Divorce

Hayley Collins Blair | May 25, 2017

One important aspect of every divorce with children is allocating the parental rights between the parents. During a marriage, both parents presumptively make decisions for their children together. After a divorce, parental decision making will look different and will be governed by the terms in the Decree of Divorce. The Decree of Divorce will include an allocation of the following parental rights, which are outlined in three sections of the Texas Family Code:

Section 153.073

The following are parental rights that are awarded to a parent regardless of whether the parent has possession of the child at the time the right is exercised or not:

• The right to receive information from another conservator of the child concerning the health, education, and welfare of the child;
• The right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
• The right of access to medical, dental, psychological, and educational records of the child;
• The right to consult with a physician, dentist, or psychologist of the child;
• The right to consult with school officials concerning the child’s welfare and educational status, including school activities;
• The right to attend school activities;
• The right to be designated on the child’s records as a person to be notified in case of an emergency;
• The right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
• The right to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.

Section 153.074

The following are parental rights that are awarded to a parent when the parent has possession of the child:

• The right of reasonable discipline of the child;
• The right to consent for the child to medical and dental care not involving invasive procedure; and
• The right to direct the moral and religious training of the child.

Section 153.132

The following parental rights are considered the most significant rights of a parent and may be allocated to one or both of the parents as discussed below:

• The right to designate the primary residence of the child;
• The right to consent to medical, dental, and surgical treatment involving invasive procedure for a child;
• The right to consent to psychiatric and psychological treatment for a child;
• 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;
• The right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
• The right to consent to marriage of the child;
• The right to consent for the child to enlist in the armed forces of the United States;
• The right to make decisions concerning the child’s education;
• The right to services and earnings of the child; and
• 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.

Allocating Rights to Both Parents

Typically, the rights of Sections 153.073 and 153.074 are awarded to both parents. The Court may, however, not award one or more of these rights to a parent if there are specific, warranting facts. For example: if one parent is mentally ill and his/her judgment or behavior is impaired because of this illness, this parent may not be awarded some of the rights of Sections 153.073 and/or 153.074.

The rights outlined in the Texas Family Code Section 153.132 will be allocated between the parents in one of three ways:

• The exclusive right of one parent;
• The right of both parents, subject to the agreement of the other parent; or
• The independent right of both parents.

If a right is allocated to both parents as “subject to the agreement of the other parent,” neither parent can exercise this right without the agreement of the other parent. The risk with allocating rights as “by agreement” is that if the parents cannot agree, they will likely end up back in Court to have the Judge address the disagreement.

Independent Rights

If a right is allocated as “independent to both parents,” it can be clarified that this right is independent to both parents, but only after notice is provided to the other parent. Additionally, provisions can be included to specify what type of notice must be provided. For example: The right to consent to medical, dental, and surgical treatment involving invasive procedure can be allocated more specifically as follows:

“The independent right, after written notice to the other conservator, to consent to medical, dental, and surgical treatment involving invasive procedures for the child; IT IS ORDERED that this written notice shall be given at least fourteen (14) days in advance of all appointments concerning an invasive procedures for a child; IT IS ORDERED that this written notice shall include the name, address, and telephone number of the healthcare provider that a parent has a scheduled appointment with, the date of the appointment with the healthcare provider, and the nature of the intended treatment for the child.”

Most often, if the right is allocated as “independent,” including a notice requirement and including additional language to specify the type of notice that is required is recommended. With specific notice provisions, if one parent schedules an appointment for the child, the other parent must be informed of the appointment and therefore will have the opportunity to also attend the appointment.

The risk with allocating rights as “independent” to each parent without including any notice requirement is that a parent may make a decision that the other parent does not agree with, without informing the other parent before the decision is made.

The right that is most commonly at issue is the right to designate the primary residence of the child. The significance of being granted this right is that if a child attends public school, the child will attend public school based on the parent’s residence who has the right to designate the primary residence of the child. If the Judge is responsible for allocating this right between the parents, then the right can only be granted to one parent exclusively. However, the parents have the ability to provide agree that that neither parent is given this right so that the Decree of Divorce is silent on this right. Regardless of whether this right to granted exclusively to one party or not, the Decree of Divorce would typically provide a geographical area in which the children would live. As a general rule, the geographical area would be defined so that the children will live in close proximity to both parents.

It is important for parents to understand the different options for allocating these parental rights, so that the Final Decree of Divorce will include an allocation of parental rights that is in the best interest of their children. Contact Goranson Bain to set up a consultation with an experienced attorney to discuss how parental rights should be allocated in your divorce.

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Hayley’s practice covers all facets of family law matters, with an emphasis on complex property and child custody cases. She guides her clients to reach an efficient and constructive resolution. Hayley was listed as a Best Lawyers by D Magazine in 2018, 2021, and 2022. She is Board Certified in Family Law by the Texas Board of Legal Specialization.

If you have questions about the allocation of parental rights during divorce, please get in touch with Hayley Collins Blair at 214-771-9245.

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