Written by attorney Kelly Kathleen Erickson

A Comparison of Guardianship and Conservatorship in Texas

People often confuse the terms “guardianship", and “conservatorship", which have specific meanings in Texas and don’t necessarily match up with those terms in other states.

“Custody" is actually not a legal term in Texas. Instead, we refer to conservatorship, which address the rights and duties of a parent or sometimes non-parent appointed by the court. In a divorce or parentage case, both parents will typically be named as Joint Managing Conservators or one will be named as Sole Managing Conservator while the other is named as Sole Possessory Conservator. Under certain circumstances, an arm of the state (the Department of Family and Protective Services) can be named as a conservator of a child, as can a family member. However, parents have legal priority and, without their agreement, another person would have to prove very special circumstances to the Court in order to even begin a suit for conservatorship.

Guardianship in Texas is not a family-law term at all. Guardianship is covered by the Texas Probate Code, and it addresses people with a legal incapacity, defined as “(1) a minor; (2) an adult individual who, because of a physical or mental condition, is substantially unable to provide, food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individuals’ own financial affairs; or (3) a person who must have a guardian appointed to receive funds due the person from any governmental source" (Tx. Probate Code Sec. 3 (p)).

Unless both parents are deceased, legal matters concerning a child will be dealt with under the Family Code as conservatorship rather than under the Probate Code as a Guardianship. If a family member or friend is seeking some parental rights, such as the ability to establish health insurance for the child, that would probably fall under conservatorship, not guardianship.

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