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| | Replacing Joint Managing Conservators With Sole Managing Conservator |
Two-Part Test
The court may replace an existing joint managing conservatorship with a sole managing conservatorship if both of the following conditions exist:
Either:
- The child's present living environment may endanger the child's physical health or significantly impair the child's emotional development; or
- A party has committed a substantial and unexcused violation of the terms and conditions established in the existing conservatorship order;
or
- The circumstances of the child or of one or both of the joint managing conservators have so materially and substantially changed since the rendition of the order that it has become unworkable or inappropriate under existing circumstances; and
- The appointment of a sole managing conservator would be a positive improvement for and in the best interest of the child.
NOTE: When a court replaces a joint managing conservatorship with a sole managing conservatorship, the joint managing conservatorship immediately ends and the sole managing conservatorship immediately begins. The trial court should be guided by the Family Code's standard possession order, which governs possession by a parent named as possessory conservator.
Redesignation of primary joint managing conservator.
A suit to redesignate the primary joint managing conservator should be treated as a modification of conservatorship rather than as a modification of the terms and conditions of joint managing conservatorship. Even though both parents retain their status as joint managing conservators when primary possession is shifted from one to the other, the actual effect of the modification is on conservator status.
Establishing Material Change and Unworkability
When One Conservator Makes Geographic Move.
The most common reason for requesting a change from joint managing conservatorship to sole managing conservatorship is that one conservator has moved his or her residence and the move has made the joint custody unworkable. Although a relocation by one joint managing conservator often makes the joint managing conservatorship unworkable, not all moves have that result, especially when the parents have demonstrated an ability to continue to work with each other as joint managing conservators
. When Conflict Exists Between Joint Conservators.
Conflict between the joint conservators is a primary factor courts rely on in finding the prior order unworkable. Evidence of disharmony includes:
- The need for law enforcement officers to oversee the change of possession of the child.
- Tension between the parents that causes stress in the children.
- One parent's refusal to continue with a shared custody arrangement.
- Bickering between parents.
When Both Parties Seek Appointment as Sole Managing Conservator
When both joint managing conservators seek to be named sole managing conservator, they are deemed to have admitted that a material and substantial change has rendered the joint managing conservatorship unworkable or inappropriate
Establishing Positive Improvement and Best Interest
To establish that the change from a joint managing conservatorship to a sole managing conservatorship would be a positive improvement and in the child's best interest, the petitioner need not show that the other party would harm the child. The petitioner need only show that he or she provides a somewhat better environment for the child.
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