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.
How are the terms of child visitation established?
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 Texas 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 child custody 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.
What is Possession and Access as Defined by Texas Family Law?
Texas Family Law refers to child visitation as “possession and access” of a child. However, the concept of possession and access exceeds simple visits. The “conservator” (most often a parent of the child) who has possession of a child also has certain rights and responsibilities. For instance, during his/her period of possession a parent conservator has the right to consent to non-invasive medical and dental care and the right to direct the child’s moral or religious training. That parent also has the duty to care for, control, protect, and reasonable discipline of the child. Each parent also has the duty to provide financial support of the child during their respective period of possession by providing necessities such as food, clothing, and shelter.
It is rare that a judge decides that a parent should not have any possession and access of a child, but it can happen in certain severe cases. If a court determines that allowing possession and access would put the child in danger of physical or emotional harm, that parent’s possession and access can be supervised, completely denied or their parental rights may even be terminated.
Under normal circumstances, each parent presumably has the right of possession and access to their children. In situations where the court system is involved, whether through a divorce, suit affecting parent child relationship or other action, a parenting plan will be entered by the court. The visitation portion of the parenting plan is frequently a standard possession order.
Standard Possession Order in Texas
Chapter 153 of the Texas Family Code governs possession and access of a child under most situations. While there are various possession schedules that may be utilized based on what is in the best interest of the child the subject of the suit, the most frequently used schedule today is the Standard Possession Order.
The Standard Possession Order is applicable to children over the age of 3 and is the presumed minimum amount of possession and access for a parent that is named a joint managing conservator. It is also the presumed visitation schedule for a person named as a possessory conservator. There are different versions of the Standard Possession Order depending on if conservators live within 50 miles of each other or live over 100 miles apart.
As in all possession and access scenarios regardless of age, possession of children under the age of the three can be determined by an agreement of the parties. If an agreement cannot be reached, the court must render an age-appropriate order based on certain criteria. Some of the factors to be considered by the court include, caregiving provided to the child prior to the filing of the suit; the effect that separation from a party may have on the child; availability and willingness to be a caregiver; the physical, medical, behavioral and developmental needs of the child; continuity of routine; location and proximity of residences of the parties; the presence of siblings; the physical, medical, emotional, economic and social conditions of the parties.
Modified Possession Orders are available to families whose circumstances make the standard order visitation schedule unworkable or not in the best interest of the children. A family lawyer can help draft an order and create a schedule that is workable for all kinds of unique situations.
If evidence shows that a child may not be safe in the care of a parent, the judge may order supervised possession. In those situations, a parent’s time with the child may be supervised by an agency, a neutral party, or even a family member. If there is evidence that a parent might physically or emotionally harm a child, the judge may take the drastic measure of revoking possession and access rights altogether. Though rare, it is within the scope of possibility.
If you have reason to believe that your child’s safety may be in jeopardy while in the other parent’s care, it is important to speak with a lawyer. An experienced attorney can prepare you for what must be proven to establish the need for supervised possession. Further, based on the facts of your case, your lawyer should be able to provide likely potential outcomes regarding possession, whether supervised or not. Supervised visits are not usually a long-term solution, so it is important to speak with an experienced Texas possession and access attorney about your situation.
Learn More About Possession and Access in Texas
Even in the most cooperative parenting situations, possession and access can become a point of contention. When the parenting relationship is complex or there is a history of mistreatment, disagreements over possession and access can lead to major disputes. A Texas family lawyer specialist is best positioned to help you find a workable solution. Scroggins Law Group is headed by Mark L. Scroggins, Board Certified in Family Law by the Texas Board of Legal Specialization. Less than 1% of all attorneys in the state of Texas are board certified in family law. So, when possession and access to your children is on the line, contact an expert in family law. Please contact our firm today to schedule a confidential consultation.