Being a parent and having to go through a family law case is one of the more stressful experiences that you can go through. After having represented so many parents over the years in cases just like these the attorneys with the Law Office of Bryan Fagan, PLLC would like to share with you some information on navigating the waters associated with contested cases where possession of your child is at stake.
What happens when your child is three or younger?
In yesterday’s blog post we touched on both Standard Possession Orders (SPO) as well as modified possession orders. These are possession schedules that either come out of the Texas Family Code in the case of SPOs or are come up with by you and your child’s other parent through negotiation. If you are interested in learning more about the specifics of each you can read our blog post from yesterday to find out more.
These schedules are usually entered into when the child is over the age of three. What happens if your child is three or younger? There is a presumption that is in place for children over the age of three that a SPO is in the child’s best interest. This means that if you and your child’s other parent cannot come to an agreement on a possession schedule that a judge will order a SPO be put into place, absent circumstances/facts to argue otherwise. However, that presumption does not apply when your child is under the age of three.
In this situation you and your child’s other parent are still able to agree to a SPO being instituted in your case or can determine a specific parenting schedule that works better for both of you. Many parents purposefully begin work schedules that are more flexible when their child is young and not yet going to school on a full time basis. If this describes either you or your child’s other parent then you all can either agree to a SPO or a modified possession schedule that takes your current circumstances and molds a workable possession schedule around them.
As we’ve discussed both in today’s blog and in yesterday’s post, if you and your child’s other parent still cannot come to an agreement on a schedule then a judge will intercede and come up with one for you after a trial. A straightforward, by the book, fairly close to a SPO type possession schedule is likely the outcome of a trial. The reason being is that judges are not in a position to try and get too creative when it comes to inventing possession schedules for people. They only have a brief window into your lives in the form of a trial. If you and your child’s other parent want or need an atypical/unique/flexible possession schedule to follow you are best off settling outside of court.
Supervised possession or visitation
Every so often a situation arises where one or both parents of a child requires supervised visitation. The reasons for this can be pretty varied but in the end, usually it has to do with violence, abuse and/or neglect as demonstrated by one or both parents. While it is fortunate that these situations do not come up all that often, if you find yourself in a position where you believe limiting the other parent’s periods of possession with your child is appropriate then read on to find out more.
Supervised visitation is agreed to in limited instances where the evidence is overwhelmingly against your other parent. For instance, a recent criminal history and bad acts that have been acknowledged by the opposing parent in your case tell me that he or she may concede that supervised visitation is the best that he or she can do at the moment. On the other hand, if your child’s other parent does not believe that he or she is likely to be awarded supervised visitation in court then there will be less of a chance that an out of court settlement can be reached.
Supervised visitation revolves around finding someone- a family member, counselor, state approved supervisor, etc.- to be present when your child’s other parent has possession of your child. Some third party supervisors charge money for their services (in fact, I cannot recall one who does not) and it is likely the parent whose possession must be supervised who will have to pay for the costs of that service.
If you are working on your child custody or divorce case without an attorney and are at a loss as to where to find court approved third party supervisors you can search the internet or check out the Texas Attorney General’s website for more information.
Along with actually ordering that their periods of possession be supervised, orders regarding possession likely would require that the parent refrain from drinking alcohol within the 24 hour period immediately before the period of possession. Again, this is done in order to protect your child’s safety and to encourage good behavior by your child’s other parent.
Keep in mind that supervised visitation is not necessarily going to be something that is in place on a permanent basis for your child’s other parent. It is common to write into possession orders “stairsteps” that will take the parent from supervised to more normalized periods of possession. The thought is that by showing responsible behavior the other parent can take small stair steps out of an unfavorable visitation schedule and into something more typical for a parent with visitation rights.
What affect, if any, does family violence play in determining a possession schedule for your child?
As I’m sure you could imagine, family violence can impact a judge’s decision in a family law case a dramatic amount. A judge is bound by the law to consider whatever evidence of family violence that you are able to show in a family law case. Custody and visitation are often determined in large part on the absence of presence of family violence.
While it is not common, some judges would even go so far as to totally restrict visitation with your child in regard to the abusive parent. If he or she has shown a history of abuse and has shown no awareness or ability as far as correcting that behavioral flaw then he or she may wind up getting no visitation time with your child for a long while. He or she may be able to get a stair step provision built into the order or may need to come back and seek to modify the possession order in the future if his or her circumstances have changed for the better.
Where do possession orders come from?
There are many ways in Texas to get a possession order from a judge. As we have talked about already, it is not necessary to go all the way to a trial in one of these guys. Most typically, parents in Texas agree to parenting plans and possession orders after negotiation either in mediation or informally between themselves and their attorneys.
Divorces and lawsuits called Suits Affecting the Parent-Child Relationship (SAPCR) are the most common methods. SAPCR cases involve parents either who are not married and need an initial order for child custody and/or possession or involve parents who were once married and are now coming back to the court that granted their divorce for a revised or amended order based on a change in circumstances.
In some situations where paternity has not been resolved for a child, paternity cases can involve coming up with a possession order once paternity has been established.
Looking for an experienced family law attorney to represent you in your case? Contact the Law Office of Bryan Fagan, PLLC
The attorneys with the Law Office of Bryan Fagan, PLLC stand ready and able to help you and your family resolve any issues that you have regarding child custody, possession or divorce. We offer free of charge consultations to people in our community just like you who have questions about these issues and more. Contact us today to schedule a consultation where we can discus your problems and help you begin to create solutions for them.
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