In Texas, a person who wants to be responsible for the care of a child long-term should ask the court for a permanent managing conservatorship (PMC). The term PMC also means “permanent managing conservator,” the person awarded the care of the child.
A person who wants to assume the care of a minor child for a period of time of up to 60 days should request that the court name them as the child’s temporary guardian. A person who believes a child is in danger from a family member should file for a temporary ex parte protective order.
What Is a Temporary Guardian Under Texas Law?
Texas Estates Code Section 1002.017 uses the term “temporary guardian” to describe an individual who will care for an incapacitated person. An incapacitated person can be a minor.
An incapacitated person can also be an adult with a physical or mental condition who cannot provide food, clothing or shelter for themselves, care for their own physical health, or manage their own financial affairs.
In addition, an incapacitated person can be an individual who must have a guardian appointed for them in order to receive funds from a government source. A temporary guardian for a child can take actions such as authorizing medical treatment for the child and enrolling the child in school or daycare.
Steps to Become a Temporary Guardian
The basic steps to become a temporary guardian in Texas are:
- Register with the state of Texas/Judicial Branch Certification Commission. The JBCC runs a criminal history background check on the individual and then sends the results to the county clerk.
- File an application for temporary guardianship. The cost to file the application varies by county. In Taylor County, the base filing fee for an application for temporary guardianship is $360.
- File a motion to appoint an attorney ad litem to represent the minor, along with the county’s new probate/guardianship information sheet.
- After the case requesting temporary guardianship has been filed and assigned a case number, the applicant or their attorney must file a request for an issuance form to ensure there is a hearing set on the matter.
The applicant must pay for the issuance of notice of the hearing and service fees to the relevant parties, the minor and the attorney ad litem. The cost of filing all of these items varies by county. If the temporary guardian will be someone other than the applicant, the temporary guardian must be served as well.
The applicant must also:
- Contact the point person from the local court for a list of attorney ad litems.
- Coordinate with the court and the attorney ad litem to select a hearing date and time. The hearing must be held within 10 days of the submission of application for temporary guardianship.
Temporary Protective Orders in Texas
When a person has reason to believe that a child is in danger from a family member, they should file a petition for a temporary ex parte protective order. This petition is filed in the county where they and the child reside.
The request is akin to an emergency child custody petition in other states. In Texas, a temporary guardianship and a temporary custody order are not the correct avenues to immediately gain custody.
In the Texas court's temporary ex parte protective order, it can prohibit the person who is named as a threat to the child from having contact with the child. This means the court may award legal custody of the child to the applicant or another party as long as the order remains valid. A temporary ex parte protective order is valid for the period specified in the order, which may not be more than 20 days.
Extending a Temporary Ex Parte Order
On the request of the applicant or on the county court’s own motion, the court can extend the temporary ex parte order for additional 20-day periods.
There is no cost to file a temporary ex parte protective order, and the applicant does not need an attorney to file for this type of order. They can hire an attorney or go to a Legal Aid office to get help with completing the petition.
Filing for a Protective Order
After filing for a temporary ex parte protective order before the temporary order expires, the applicant should file for a protective order, which can last up to two years. There is no cost to file for a protective order.
The court will hold a hearing on the applicant’s petition for a protective order. The family member alleged to be a danger to the child has a right to attend the hearing, testify and call other witnesses to testify.
Returning to Court to Request PMC
In other states, a person who assumes long-term care of a child is appointed by a state court as the child’s legal guardian. A person with permanent managing conservatorship is Texas’ equivalent of a legal guardian. This is why a person who wants to care for a child beyond 60 days should request PMC.
A Texas judge can give PMC to the Texas Department of Family and Protective Services (DFPS), a relative, a close family friend, or a foster parent. A PMC involves the person being appointed being legally responsible for the child without adopting the child.
The judge determines which rights and responsibilities they will award to the person with the PMC after considering each specific situation.
What Is Required for Permanent Guardianship?
The person who wants to have PMC must request it from the court. They must demonstrate that they are a responsible adult and can meet the various responsibilities to care for a child, including:
- Assuming the care, control, protection and reasonable discipline of the child.
- Directing the moral and religious training of the child.
- Providing the child with clothing, food, shelter, education, and medical, psychological and dental care.
Often, a person given PMC is a member of the child’s kinship family, a household that is part of the child’s extended birth family. A kinship family who becomes a permanent managing conservator may get PCA if:
- DFPS and the courts rule out returning children to their birth families.
- DFPS rules out adoption as an option for the kinship family.
- Person with PMC is approved for PCA.
Required Steps for PMC Approval
In order to be approved for PMC, kinship caregivers are required to:
- Complete the verification process through a child-placing agency to become foster parents.
- Serve as the child’s foster parents for at least six months.
- Negotiate and sign a PCA agreement with DFPS.
- Go to court to receive PMC.
The cost to get PMC is not stated in DFPS’s websites relating to PMC because a judge typically awards a person with PMC in the course of an existing case involving DFPS.
A person who is caring for a child cannot give PMC to a family member. The court must determine whether it will give PMC to the family member upon the family member’s own request.
Receiving Permanency Care Assistance
The person with PMC is eligible to receive Permanency Care Assistance (PCA), which includes monthly financial help and health care coverage for the child up to age 18. The benefits may last until age 21 if the child is 16 or older when the person signs the PCA agreement, and the child meets certain education or vocational requirements.
What Happens After PMC?
After the court gives a person PMC over a minor, the judge will dismiss DFPS from the case. DFPS is then no longer involved with the child or the PMC’s family. The person with PMC no longer receives services from DFPS, including case management, day care and post placement services.
Impact on Foster Care Payments
A child’s foster parent, the person who has completed the process to become a foster parent through a child-placing agency, will not continue to receive foster care payments after they are given PMC. A PMC who decides to adopt later will not receive adoption assistance from the state of Texas.
Termination of Birth Parents' Rights
The court has a choice as to whether PMC will come with a termination of the birth parents’ parental rights. If the court terminates the birth parents’ parental rights, they will no longer have legal rights or duties regarding the child.
The person with PMC has a duty to protect the child from the birth parents, if necessary. If the court does not terminate the birth parents’ parental rights:
- Birth parents may continue to have contact with the child as determined by the court order.
- Birth parents or relatives can go back to court any time until the child’s 18th birthday. They may petition the court to obtain certain rights, including custody of the child.
- Persons with PMC can petition the court to issue additional orders as needed with regard to the birth family.
- Persons with PMC may apply to get Medicaid coverage for the child. They must be approved to get other benefits such as SNAP food benefits and TANF.
- Birth parents may be ordered by the court to pay child support.
- Persons with PMC are responsible for enforcing and attempting to collect child support if birth parents are ordered to pay. The person with PMC may need to hire an attorney and petition the court.
- If the birth parents are not ordered to pay child support, the person with PMC and the birth parents may decide that the birth parents will informally provide financial assistance or support the child in other ways, such as driving the child to school or to medical appointments.
Other Types of Conservatorships
Three other types of conservatorships relating to children in Texas are joint managing conservator, sole managing conservator and possessory conservator. These arrangements describe different types of court-ordered custody of a child following a divorce.
Typically, divorced parents are named joint managing conservators. They share the duties of parenting, such as making decisions regarding the child’s health and education.
In a sole managing conservatorship, one parent has the exclusive right to make decisions regarding the child. When one parent is the sole managing conservator, the other parent is the possessory conservator. A possessory conservator is still recognized as a parent, but does not have the final word on most decisions.
Family Law Attorneys Can Help with Guardianship Applications
A family law attorney can explain the different types of legal arrangements regarding children. They can also represent a person who wants to become a temporary guardian or PMC. The Texas State Bar offers a lawyer referral and information service.
A person who is seeking free or reduced fee legal assistance should contact their local Legal Aid office to see if they qualify for services.
- Texas Estates Code: Title 3 Guardianship and Related Procedures, Chapter 1251 Temporary Guardianship
- Texas Estates Code: Title 3 Guardianship and Related Procedures, Chapter 1002 Definitions
- Texas Department of Family and Protective Services: Adoption or Permanent Managing Conservatorship
- Texas Department of Family and Protective Services: Kinship Care
- Taylor County, Texas: Procedure for Filing Temporary Guardianship
- Texas Family Code: Title 4 Protective Orders and Family Violence, Chapter 83 Temporary Ex Parte Orders
- Texas Family Code: Title 4 Protective Orders and Family Violence, Chapter 82 Applying for Protective Order
- State Bar of Texas: Lawyer Referral and Information Service
- A physician's certificate is required for permanent guardianship, but some courts will also ask for it in temporary guardianship hearings as proof that the child’s health or well being is in danger.
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.