If a child’s parents do not live together, the state of Texas presumes that both parents have the responsibility to provide financial support and the right to custody or visitation. Though child support and visitation may seem like two sides of the same coin, they are separate issues. If one parent withholds child support, this does not give the other parent the right to withhold visitation — and vice versa.
It is a common misconception that because Texas presumes that parents should be named joint managing conservators of their children, that possession of the children is split equally between the parents.
The Texas Family Code refers to custody as “Conservatorship” and visitation as “Possession and Access”, and makes it very clear that joint managing conservatorship does not require the Court to award equal or nearly equal periods of physical possession of and access to the children to each of the conservators.
The Family Code further lays out a rebuttable presumption that the standard possession order provides the reasonable minimum possession of a child for a parent, and that the standard possession order is in the best interest of the child.
A 50/50 possession order only works with parents who reside relatively close to each other, such that the ability to get the kids to and from school is not problematic. That being said, it can be very beneficial in a myriad of situations for both parent and child. Contact a board certified family lawyer to discuss those reasons and the likelihood of success in obtaining a 50/50 possession schedule.
In situations where domestic violence has occurred, the likelihood of obtaining a 50/50 possession schedule is extremely limited. The Texas Family Code prohibits the appointment of joint managing conservators if there is a finding of past or present child neglect, or physical or sexual abuse directed against the other parent, a spouse, or a child. The code further lays out a rebuttable presumption that the appointment of the abusive or neglectful parent as sole managing conservator or joint managing conservator with the right to determine the primary residence of the child is not in the child’s best interest.
The public policy of the state of Texas 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. A court may not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support.
The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.
The guidelines established in the standard possession order are intended to guide the courts in ordering the terms and conditions for possession of a child by a parent named as a possessory conservator or as the minimum possession for a joint managing conservator who does not have the right to establish the primary domicile for the children. It is the policy of this state to encourage frequent contact between a child and each parent for periods of possession that optimize the development of a close and continuing relationship between each parent and child. It is preferable for all children in a family to be together during periods of possession. The standard possession order is designed to apply to a child three years of age or older.
The court may render an order for periods of possession of a child that vary from the standard possession order based on the agreement of the parties or based on its own volition.
In ordering the terms of possession of a child under an order other than a standard possession order, the court shall be guided by the guidelines established by the standard possession order and may consider: (a) the age, developmental status, circumstances, needs, and best interest of the child; (b) the circumstances of the managing conservator and of the parent named as a possessory conservator; and (c) any other relevant factor.
Unless both parents come up with a schedule together, the court will make a decision for you and determine the schedule for you.
Customized possession schedules require special attention to the enforceability of the schedule. The underlying order must set forth the terms of compliance in clear, specific and unambiguous terms so that the person charged with obeying the order will readily know exactly what duties and obligations are imposed upon him or her. A court order is insufficient to support a judgment of contempt if its interpretation requires inferences or conclusions about which reasonable persons might differ.
If visitation is contested, the Office of the Attorney General recommends employing the services of a private Collin County family law attorney. At Scroggins Law Group, PLLC, we have over 25 years of family law experience. We have helped hundreds of clients resolve difficult child visitation disputes in and around Dallas. Allow us to use our trial experience to protect your child’s best interests.
To enlist the counsel of a Texas board-certified family law specialist, call Scroggins Law Group at 214- 469-3100. Our Collin County visitation rights lawyers proudly serve Lewisville, Flower Mound, Highland Village, Allen, Frisco, Plano and McKinney.
*Mark L. Scroggins is *board-certified in family law by the Texas Board of Legal Specialization. Unless otherwise noted, other attorneys are not *board-certified.
**Super Lawyers (a Thomson Reuters service, awarded to Mark Scroggins 2014, 2015, 2016, 2017, 2018, 2019)
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