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.
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.