Possession Schedules for Children Under Three

In divorces and cases involving the parent-child relationship, the court will establish a parenting plan that is in the best interest of the child. This parenting plan includes the rights and duties of a conservator and a possession schedule for the child. Courts may consider several factors when determining what is in the best interest of the child, but the Texas Family Code provides some guidance when it comes to possession schedules. Texas law presumes that the Standard Possession Order provided in the Texas Family Code is in the best interest of the child. But this presumption does not apply to children under 3 years of age. This means that when dealing with a child under 3 years old, there is no standard schedule or any guidance in the Texas Family Code. This doesn’t mean the court will not award the standard possession schedule, but it does mean the standard possession schedule is not always the court’s default possession order. When dealing with possession or custody schedules for a child under three, the court will look at many factors. These factors will include the age and development of the child, the length of time the parents have been separated, the relative involvement of each parent in the child’s life up to that point, and the distance between the parents’ residences. Based on these factors, the court will determine what type of schedule will help the child develop and maintain a healthy and trusting relationship with both parents.

Children under the age of three are still developing and have different needs than older children. Parents are always able to present agreed possession schedules to the court for approval, but it is important to keep a few things in mind when developing a visitation schedule for children under three. Having shorter but more frequent visits between the noncustodial parent and the child will help the child feel secure and develop trust with the noncustodial parent. Frequent and consistent visits will also help the child develop a healthy attachment to both parents. Depending on the age of the child at the beginning of the case, the visitation schedule may be divided in to three periods: birth to 18 months, 18 months to 3 years, and finally 3 years and older. The child will have different needs throughout these stages, so it is best to have a step up or change in the possession schedule at each stage that will support healthy development and emotional attachment with both parents. It is a good idea to include gradual steps towards either the standard possession order or a mutually agreed upon possession schedule once the child turns three. This will prevent the need for either parent to seek a modification of the possession schedule once the child is older than three. This is also beneficial since the frequent but shorter visits may become cumbersome for both the parents and the child as the child gets older.

While the best interest of the child is always the primary concern for family courts and judges, it is important to recognize that for young children, the standard possession schedule is not always best. If your divorce or child custody case involves a child under three, it is so important to develop a phased or stair step possession schedule that will continue to serve your child’s needs as he or she continues to grow and develop. Contact The Draper Law Firm to help you create and establish a possession schedule that is in the best interest of your child.

Blog post by Shmyla Alam

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In Texas, grandparents have rights only in very limited circumstances.  The general rule is that the parents have a fundamental right to decide how much, if any, access a grandparent should have.  There are two different issues when dealing with grandparent cases:  (1) When does a grandparent have the ability to sue for custody? and (2)  When does a grandparent have the ability to sue for visitation?

Under the Texas Family Code, a grandparent has standing to sue for custody in a variety of ways.  First, the grandparent can sue for custody if any of the general standing requirements are met under Section 102.003(a) of the Texas Family Code.  These general standing requirements apply to all adults, not just grandparents, so in these situations the person’s status as a grandparent is not relevant.  Those grounds include: (1) a person with court-ordered visitation in another state or country; (2) the child’s guardian; (3) a person who has had actual care, control and possession of the child for at least six months; (4) a person designated as a managing conservator in an affidavit of relinquishment or given consent to adopt; or (5) a person who resided with the child and a recently deceased parent.  A grandparent also can gain standing under section 102.004(a) of the Texas Family Code if she has satisfactory proof that the child’s present circumstances will significantly impair the child’s physical health or emotional development.  The significant impairment must exist at the time suit is filed.

The standing rules are different when it comes to a grandparent just wanting visitation of a child.  In order for a grandparent to file suit for possession and access, the grandparent must prove that her son or daughter who is the child’s parent is unavailable.  This prong is met if the parent: (1) has been incarcerated for at least three months before the petition was filed; (2) has been judicially declared incompetent (3) is dead; or (4) does not have actual or court-ordered possession of or access to the child.  Essentially, it is presumed that if the grandparent’s child is in the picture, that person has the right to determine if the grandparent has access or not.  It is only when the child of the grandparent is out of the picture that the grandparent now has a right to file suit for possession and access.

If the grandparent can sue for possession and access under these terms and the child is with a parent, the grandparent must then show that the child’s physical health or emotional well-being would be significantly impaired if the grandparent is not given possession and access.  If a non-parent has custody, many courts have held that significant impairment need not be shown.  The grandparent must also prove that the parent or non-parent managing conservator intends to completely deny possession and access to the grandparent.

Grandparents' Rights pic

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Temporary orders can be entered in any family law case to govern what will happen with various different aspects of the case while it is pending.  Temporary orders can relate to both the child(ren) and other financial matters.

Typical temporary orders related to children in either a divorce or custody case include: (1) designation of conservators as either temporary joint managing conservators or temporary sole managing conservator / possessory conservator; (2) the possession schedule be for the child with each of the parents; and (3) whether child support will be paid and, if so, how much.

Examples of additional financial matters to consider for temporary orders in a divorce case are: (1) who will get primary use of the marital residence; (2) how community bills are going to be paid during a pending divorce; (3) whether or not one party will pay temporary spousal maintenance to the other; and (4) who will get primary use of any vehicle(s).

Temporary orders can also govern how the parties treat each other while the case is pending and what is said or done in front of the children.  Temporary orders can either be reached by agreement, or they can be ordered by a court after a hearing.  Temporary orders hearings are like mini trials.  In Collin County, temporary orders hearings are limited to twenty minutes per side, which can really limit what you can do.  In other counties, such as Dallas County and Denton County, you are often given significantly more time for a temporary orders hearing.

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In Texas, if you are not married when your child is born, there is no legal father.  The biological dad is not legally the father until a court adjudicates him to be so.  (Prior to a court finding that he is the legal father, the unmarried biological father is referred to as the “alleged father.”)  The bio dad can (and should) sign an Acknowledgment of Paternity form when the baby is born.  Many hospitals now have this form on site when a baby is born.

In order  for the biological father to obtain legal status as the father, someone must file a paternity suit.  Either parent can file a paternity suit, as can the Attorney General.  (Usually the Attorney General will file suit when Medicaid is involved because they want the government to be reimbursed for medical expenses.)  This is the case even if everyone admits he is the dad and there is no dispute.  This is also the case even if dad signed a valid Acknowledgment of Paternity.

The paternity suit serves several purposes.  First, it allows the Court to formally adjudicate the biological dad as the legal father.  If everyone admits he is the father or if he signed an Acknowledgment of Paternity, then the Court will adjudicate him to be the father.  If either side contests paternity, the Court will order a paternity test.    Other issues typically involved in a paternity suit are conservatorship (rights and duties), possession and access (the schedule for when each parent has the child), and child support.

Paternity

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A parent who has been denied possession and access in violation of a court order can obtain several types of relief in an enforcement proceeding.  First, the violating parent can be held in contempt for each violation.  If a parent is held in contempt, that parent can be sentenced to up to 6 months in jail.  In my experience, most judges are hesitant to throw someone in jail for the first offense, but it is a possibility.  It depends a lot on your particular judge.  Some judges are more inclined to throw someone in jail than others.

Another possible option is suspended commitment – community supervision.  This basically means that the violator is put on probation and their sentence is suspended.  If he or she screws up again, her community supervision is revoked and he or she will serve jail time.   Community supervision usually lasts for ten years.  The judge can also order a party found in contempt to pay a fine.  The fine would be payable to the court, not the other party.

In the judge finds that one party has violated the order, the judge can grant additional periods of possession to the non-offending party as “make up” time. The judge can also order the offending party to execute a bond or post security to secure future compliance with the order.

Finally, the court can award attorney’s fees and court costs to the non-offending party.  If the court finds that the enforcement order was necessary to ensure the child’s health or emotional welfare, an award of attorney’s fees and costs can be enforceable by the same means as child support, except for wage withholding.  If you prevail on an enforcement action, it is very likely the judge will award you attorney’s fees and costs.

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Unfortunately, I hear from parents on a regular basis who are being denied or partially denied possession and access of their child by the other parent.  Sometimes a simple letter from an attorney will be enough to make the other parent comply with the terms of the order.  Sometimes you will need to file an enforcement action against the parent to have him or her held in contempt.  When preparing for an enforcement action, there are a few steps I recommend parents take:

1.  Always arrive at the designated location at the time designated in the order.  If the order says you are entitled to possession at 6 pm on Friday but you tried to pick the child up at 7 pm, you are out of luck.  Similarly, you cannot enforce informal agreements made with the other party for switching days / times.  You can only file an enforcement action for those days / times specifically laid out in the order.

2.  Keep accurate records of when you were denied access.  I recommend keeping a journal or using a calendar to track visits.  When you file an enforcement petition, you will need to specify exact dates, times and locations for any violations.  If you kept records, this will be much easier to do.

3.  If the other parent is refusing to give you your child at the designated time and place, consider calling the local police (assuming you have a copy of your order with you).  The police may or may not help you actually obtain possession of the child at that time, but it will create a record that will be useful in court.

4.  Buy a soda from a gas station or fast food restaurant near the exchange point.  You can use the receipt to show you were in that vicinity on the date / time in question.

The requirements for an enforcement action are very specific.  Therefore, you will fare much better if you have an attorney on your side.  I have seen judges throw out enforcement actions filed by pro se parties without even hearing one word of evidence.  If the motion does not meet the specific requirements of the Texas Family Code, you will lose.

Child Custody

 

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As I described in my post on conservatorship, any order involving a child custody issue in Texas will cover two issues:  conservatorship and “possession and access.”  Conservatorship deals with rights.   The section on “possession and access” sets forth the schedule for when each parent has possession of the child.  This is the part of the order that most people think of when they use the term “custody.”

The vast majority of orders will start the possession and access section by stating that possession shall be as agreed by the parties.  This gives the parents the freedom to adjust the schedule to fit their needs and the needs of the child.

The order will then go on to set forth a specific schedule for visitation that applies in the absence of an agreement.  It could include a standard possession order, an expanded standard possession order, or some other customized order crafted for the specific family.  In Dallas County and Collin County, you can generally create any reasonable schedule you want as long as the parents agree it is in the best interest of the child.  If the case is not agreed and ends up with a trial, most judges will order either a standard possession order or an expanded standard possession order (assuming there is no family violence or other reason to restrict someone’s access to the child).  Some people get along well and agree to deviate from the schedule on a regular basis, and others stick rigidly to the schedule.

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