Under the Texas Family Code a family court must order a possession schedule for parents when a suit for divorce with kids is granted or when the court issues an order in other child custody cases.
The court order often will address other issues involving the children, such as conservator rights of the parents, child support and access by other family members to the kids. In the possession schedule the court will address the access and possession rights to the children.
These access and possession rights are typically discussed together as visitation although they are two separate and important rights.
Protecting your rights to access and possession of your children can be a complicated and frustrating process. It is easy to get lost in the judicial process and end up losing a meaningful connection to your children. That is one of the many reasons why working with a family law attorney in Texas can be important to protect your rights and your children.
What is visitation under Texas law?
Visitation is a term that is used in common language to mean both possession and access rights to children. Often people talk about one parent having custody or full custody and the other parent has visitation. This is usually not the case but understood by family lawyers to refer to a more complicated legal concept.
In legal language visitation refers specifically to access rights and not possessory rights. Possession rights are the rights of a parent or other conservator to take custody and control of the children. When you have possession of your children you have exclusive custody for a particular time period. Access rights are rights to communicate and be physically present with the children but without the right to control over the children.
The difference between these two can be confusing so let’s use some examples. If a parent takes custody of the children every other weekend then that parent likely has possession rights.
The kids are in the parent’s custody, care and control with no other parent or other supervision involved.
On the other hand, if a parent has supervised visitation then this is merely an access right. Somebody else has actual control over the kids during that time.
To put it more simply: you possess your home but you have access to a friend’s house (when invited). You control what happens in your home and you are responsible for its care. You can visit a friend’s house but you do not control that home nor are you responsible for its care.
The intersection of access and possession rights
Typically when you have possession of the children you have access at the same time. If you have access to the children then you may not have possession of them at the same time.
For example, you may have possession of your kids every other weekend but on the other parent’s weekends you have access rights to attend the kids’ soccer games. You do not obtain possession merely by showing up to the game although you do have possession of the kids at other times.
It probably does not matter that you call possession and access collectively visitation. However, it is important to understand your legal rights to possession and access and how they differ.
More about child possession rights in Texas
Fort Worth judges often award possession rights to both parents in a divorce. The Texas Family Code provides a standard possession order often used in Fort Worth divorces as the default possession schedule. This is the typical alternating weekends plus Thursday night schedule.
Some parents seek out alternative schedules for their divorce decree or other court orders like 50/50 custody schedules.
Courts vary in their willingness to grant orders including non-standard possession orders and more often grant them when Fort Worth divorce attorneys represent the parents. Judges make these decisions on the best interests of the children and many feel unrepresented parties may not understand the risks involved with non-standard possession orders.
These types of possession schedules can cause harm to children and the co-parenting relationship.
More about access rights in Texas
Often access without possession is ordered when a grandparent or sibling seeks access to a child. A court may limit parental access to the children if the parent is a risk to the well-being of the child. Access rights can vary from mere access to email or phone calls to supervised visitation to unsupervised visitation. Like possession rights, the judge will consider the best interests of the children when granting access rights to a parent or other family member.
A parent or other family member may have possession rights to the children that include access rights during non-possessory periods, such as the right to call the child or to attend school functions during the other parent’s possessory periods. Contact Fort Worth divorce lawyer Adam Kielich to discuss your access rights to your children.
Understanding Visitation in Texas Divorce
Types of Visitation
In Texas, there are different types of visitation that can be granted based on the circumstances of the case. Standard visitation, also known as the “Standard Possession Order,” is a common arrangement where the noncustodial parent has visitation on specific weekends, holidays, and extended periods during the summer. Expanded visitation allows for more extensive time with the noncustodial parent, including additional weekdays and overnight visits. In some cases, supervised visitation may be necessary to ensure the safety and well-being of the child.
Visitation Rights for the Noncustodial Parent
Noncustodial parents have the right to spend time with their children and participate in their upbringing. The court recognizes the importance of maintaining a strong bond between the child and both parents, even if one parent has primary custody. Visitation rights provide an opportunity for noncustodial parents to have regular contact and meaningful involvement in their child’s life.
Factors Considered in Determining Visitation
Child’s Best Interest Standard
When determining visitation arrangements, the court considers the child’s best interest as the primary factor. The child’s well-being, safety, and emotional development are prioritized. The court may assess the child’s relationship with each parent, the stability and safety of the parents’ homes, the child’s age and preferences, and any history of domestic violence or substance abuse.
Parent’s Relationship with the Child
The strength and quality of the parent-child relationship are crucial factors in determining visitation. The court evaluates the parent’s ability to provide love, support, and guidance to the child. The parent’s involvement in the child’s education, healthcare, and extracurricular activities is also taken into consideration.
Stability and Safety Factors
The court assesses the stability and safety of each parent’s living situation. Factors such as the physical environment, presence of appropriate accommodations for the child, and the ability to provide a stable routine and consistent parenting are evaluated. The court may also consider any history of neglect, abuse, or domestic violence.
Creating a Visitation Schedule
Developing a Parenting Plan
In Texas, parents are encouraged to create a parenting plan that outlines the visitation schedule and addresses other aspects of co-parenting. The parenting plan should be detailed and cover holidays, school breaks, vacations, and transportation arrangements. Developing a comprehensive plan helps minimize conflicts and provides clarity for both parents.
Flexibility and Communication
Flexibility and open communication between parents are essential for successful visitation arrangements. It allows for adjustments when unexpected events occur or when the child’s needs change. Both parents should be willing to collaborate and prioritize the child’s well-being when making visitation-related decisions.
Modifying Visitation Orders
Substantial Changes in Circumstances
Sometimes, circumstances may change after the initial visitation orders are established. If there are substantial changes that affect the child’s best interest, a parent can seek to modify the visitation orders. Examples of substantial changes may include a parent’s relocation, changes in work schedules, or concerns about the child’s safety or well-being.
Seeking Court Approval for Modifications
To modify visitation orders, a parent must file a motion with the court requesting the changes. It’s important to provide evidence and demonstrate that the proposed modifications are in the child’s best interest. The court will review the case and make a decision based on the presented information.
Enforcing Visitation Orders
Contempt of Court
If a parent fails to comply with visitation orders, the affected parent can seek enforcement through the court. The court has the power to hold the non-compliant parent in contempt, which can result in penalties such as fines, community service, or even jail time. Contempt of court is a serious matter and aims to ensure compliance with visitation orders.
Seeking Assistance from Law Enforcement
In some cases, when a parent consistently denies visitation or refuses to return the child after visitation, the affected parent may involve law enforcement. Law enforcement can help enforce visitation orders and ensure the child’s safe return to the custodial parent if necessary. However, it’s important to consult with an attorney before involving law enforcement to understand the legal implications.
Mediation and Alternative Dispute Resolution
Resolving Visitation Disputes Amicably
Mediation and alternative dispute resolution methods offer parents the opportunity to resolve visitation disputes outside of the courtroom. Mediation involves a neutral third party who helps facilitate communication and negotiation between parents. These methods focus on finding mutually acceptable solutions while reducing conflict and promoting cooperation.
Benefits of Mediation
Mediation offers several benefits for parents involved in visitation disputes. It provides a more informal and flexible setting, allows for active participation in decision-making, and often leads to more satisfactory outcomes. Mediation also tends to be more cost-effective and less time-consuming than going through the court process.
Grandparent Visitation Rights
Rights and Limitations
In certain circumstances, Texas allows grandparents to seek visitation rights with their grandchildren. However, grandparent visitation rights are subject to specific criteria and limitations. The court will consider factors such as the grandparent’s prior relationship with the child, the child’s best interest, and any potential impact on the parent-child relationship.
Factors Considered in Granting Grandparent Visitation
To grant grandparent visitation, the court evaluates several factors, including the grandparent’s history of providing care and support to the child, the child’s preferences (if appropriate), and the overall impact of visitation on the child’s well-being. It’s important for grandparents seeking visitation rights to consult with an attorney who specializes in family law.
Travel and Relocation
Traveling with Children during Visitation
When parents live in different locations, travel becomes a part of visitation arrangements. It’s important for both parents to communicate and make necessary arrangements regarding transportation, expenses, and accommodation during visitation trips. Planning ahead and maintaining open lines of communication can help ensure smooth and enjoyable travel experiences for both parents and children.
Relocation Issues and Considerations
If a custodial parent plans to relocate with the child, it can significantly impact visitation arrangements. Relocation may require modifying visitation schedules or even revisiting custody agreements. In Texas, specific rules and guidelines govern parental relocation. The relocating parent must provide notice to the other parent, and if disagreements arise, the court may intervene to determine whether the relocation is in the child’s best interest.
Dealing with Parental Alienation
Recognizing Signs of Parental Alienation
Parental alienation occurs when one parent undermines the child’s relationship with the other parent. It can manifest through negative comments, influencing the child’s feelings, or obstructing visitation. Recognizing the signs of parental alienation, such as the child expressing unwarranted hostility or making false allegations, is crucial for addressing and resolving these issues effectively.
Seeking Professional Help
Dealing with parental alienation can be emotionally challenging for both the affected parent and the child. In such cases, seeking professional help from therapists, counselors, or mediators experienced in family dynamics can provide guidance and support. These professionals can assist in facilitating healthy communication, addressing underlying issues, and promoting a positive co-parenting relationship.
Co-Parenting and Communication
Effective Co-Parenting Strategies
Successful co-parenting involves effective communication, cooperation, and prioritizing the child’s well-being. Both parents should maintain a respectful and child-focused approach. It’s important to keep the lines of communication open, be flexible when necessary, and work together to make decisions that are in the child’s best interest.
Utilizing Technology for Communication
In today’s digital age, technology can be a valuable tool for co-parenting communication. Email, text messaging, and shared online calendars can help facilitate information sharing, schedule coordination, and provide a record of communication. However, it’s crucial to use technology responsibly, maintain a positive tone, and respect each other’s privacy.
Tips for a Successful Visitation Experience
Prioritizing the Child’s Well-being
Putting the child’s needs first is essential for a successful visitation experience. Both parents should strive to create a nurturing and supportive environment during visitation. Providing consistency, maintaining routines, and addressing the child’s emotional and physical well-being can help create a positive and enjoyable visitation experience.
Consistency and Predictability
Establishing consistent visitation schedules and routines can provide stability and predictability for the child. When visitation dates and times are clear, the child can anticipate and adjust to the transitions more easily. Consistency also helps build trust and fosters a sense of security for the child.
Expanding and protecting possession and access rights to children
The Texas Family Code provides opportunities to enforce or expand a parent’s rights to possession and access of a child. Sometimes parents with rights to possession or access fall into conflict and the current court order is no longer workable. In these situations a family attorney can help protect your rights.
Enforcing possession rights or access rights
Texas law provides effective tools to protect these rights. In most cases the enforcement mechanism will result in a court order to make up lost time as well as payment of attorney’s fees. In more serious situations a parent or family member with rights to possession or access can use other enforcement mechanisms to order a child brought to the courthouse or picked up by a peace officer and turned over. These enforcement mechanisms are more serious. They may include jail time or other punishment for hiding or fleeing with a child.
To be clear: a parent or other family member can enforce his or her own right to possess or access a child but a court cannot order a parent or family member to exercise possession or access rights.
Expanding or changing possession or access rights
Sometimes the court’s possession schedule or access schedule stop being effective or practical. In these circumstances it is necessary to seek a modification of the court’s order to install a new schedule. A court may modify its existing order to change possession rights, access rights, conservatorship rights and child support obligations. Modifications may be necessary because the conditions of the child or another family member has substantially changed and the order no longer represents the best interests of the children. Modifications may be necessary when one of the parents routinely disregards the court order.
Possession, access and child support in Texas divorces
Many times parents who receive child support think if child support is not paid then the parent who owes the child support does not get their possession or access to the children. This is a dangerously inaccurate view.
Under the Texas Family Code the right to receive child support is independent of the possession or access rights of any party. Withholding a child over nonpayment of child support risks that parent becoming subject to an enforcement action. A possible modification of the child support obligation or possession schedule may follow. There are other effective methods to enforce the child support obligation.