In Texas, visitation is legally known as "possession of and access to a child (or children)." In family law cases that involve a divorce or child custody, the court normally appoints the parents as conservators of the child (or children) either on a temporary or permanent basis.
Standard Possession Order
After this appointment, a court will decide how much possession of and access to a child each conservator will have. In most cases, the court will adopt the "Standard Possession Order" with specific terms and conditions of possession and access that are provided for by the Texas Family Code. For a child who is three years of age or older, the Standard Possession Order is presumed by Texas Courts to be in the child's best interest and to provide each conservator with a reasonable minimum level of possession or access. However, this legal presumption can be rebutted if it is shown to be in the best interest of a child to do so. The Standard Possession Order sets a default time period and a specific circumstance of possession and access to a child, but the parents may agree to time periods and circumstances that are different.
Visitation with Child under Three
A possession order may differ significantly from a Standard Possession Order because of the child's age. More specifically, a Standard Possession Order would not apply to a child under the age of three. The first two years of a child's life are considered by Texas Courts to be a crucial period when a child learns to love, trust, and develop a sense of identity and self-esteem. Therefore, Texas Courts normally render a more appropriate possession order for a child less than three years of age and a subsequent order, presumably the Standard Possession Order, will take effect beginning on the child's third birthday.
In determining an appropriate possession order for a child under three, a court should consider the following list of factors:
- The care-giving provided to the child before and during the current lawsuit
- The effect on the child that may result from separation from either parent
- The parent's availability as caregivers and willingness to personally care for the child
- The child's physical, medical, behavioral, and developmental needs.
- The parent's physical, medical, emotional, economic, and social conditions.
- The impact and influence of individuals, other than the parents, who will be present during periods of possession.
- The presence of any siblings during periods of possession.
- The child's need to develop healthy attachments to both parents.
- The child's need for continuity of routine.
- The location and proximity of the residences of the parents.
- The need for a temporary possession schedule that incrementally shifts to the schedule provided in the order based on the child's age or a parent's minimal or inconsistent contact with the child
- The parent's ability to share in the responsibilities, rights, and duties of parenting
- Any other evidence concerning the child's best interest
If both parents are willing, a properly written agreed possession order may be drafted and presented to the Court. But, if you are unable to reach such an agreement, and are being prevented from regularly visiting your child, you will need the experience of a family law attorney who has been involved in such contested cases to secure the quality time with your child that a court may find that you are entitled to receive.
Our firm has served the Dallas area for over 40 years, and attorney Jerry W. Melton is Board Certified in Family Law by the Texas Board of Legal Specialization. We have the resources to answer all of your questions concerning visitation and the qualifications to present a strong case for you. Please fill out our form online or call 972-980-8000 today to schedule a free consultation.