Without a doubt, the most worrisome aspect of a divorce for a parent is how the divorce will affect the parent’s time with children. A biological parent of a child has legal rights to that child. These rights include custody rights and possession and access. The public policy in Texas is that both parents, after divorce, should maintain frequent and continuing contacts with their children, as long as the parents have proven they are able to act in the best interest of their children.
When there are children involved in a divorce, the divorce decree will contain provisions for possession and access, often referred to as “visitation.” For children over three years of age, the Standard Possession Order is presumed to be in their best interest. The possession order outlines the dates and times a parent will have possession of the children, including how holiday possession is handled. Because Texas is such a large state, the Texas Family Code breaks down the Standard Possession Oder based upon the distance between spouses.
The parent exercising possession is referred to as the “possessory” conservator. If that parent resides within one hundred miles of the primary residence of the children, the possessory conservator will have the right to possession of the children as follows:
When the possessory conservator lives over 100 miles from the primary residence of the children, the possessory conservator will have the right to possession of the children as follows:
Regardless of the distance of the parents in a divorce, the possessory conservator will have the right to possess the children on holidays as follows:
The parents may mutually agree in advance to a possession schedule that is different than the Standard Possession Order specified in their divorce decree. But in the absence of such an agreement, the Standard Possession Order will control. In this sense, while allowing for parents to agree to a different schedule, the Standard Possession Order is the “fall back” order when they cannot.
The presumption that the Standard Possession Order is in the best interest of the children does not apply when the children are less than three years old. Instead, the court will “render an order appropriate under the circumstance” and what is appropriate for the family and in the best interest of the children. In these cases, the court will consider relevant factors, such as:
When a court makes a determination about possession and access, it must consider evidence of family violence. Ultimately, the court must consider the physical safety and emotional development of the children when making its decision. The judge may also consider drug use and other facts that may relate to possible abuse or neglect. In these situations, a judge may order supervised visitation only for a parent. Supervision may be by a competent adult including a family member. Often, as in Tarrant County, a court may order that visits take place at the courthouse under the supervision of Family Court Services.
If you are considering a divorce and have any questions on how your divorce might impact your relationship with your children, contact an attorney at Hardy Law Group today.