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When can a parent be awarded less than a Standard Possession Order in a Texas divorce?

The Standard Possession Order (SPO) is the, well, standard for possession for parents in Texas family law cases who are not designated as the person to determine the primary residence for their child. If you have been awarded visitation rights in a Texas divorce it is likely that your possession schedule looks an awful lot like an SPO. The SPO is presumed to be in the best interests of your child and is laid out in detail within the Texas Family Code. It is a tried and true schedule that ideally maximizes the time that both you and your child’s other parent and able to spend with him or her.

The Family Code also contains statutes that detail when a judge can award less than an SPO in a divorce trial. Note that judges, when considering any possession schedule for your child, will need to think about what is in the best interests of your child. This the first, last and most important consideration that will need to be made in your case when it comes to issues related to your child.

If you believe that your spouse should not be entitled to an SPO then you will need to voice this in your trial. Having an experienced family law attorney by your side (such as those with the Law Office of Bryan Fagan, PLLC) can certainly help you in this endeavor. The specific how and why arguments need to be made in plain language so that a judge can understand them clearly and can then make a decision as to what is appropriate and ultimately what is in your child’s best interests.

Family violence/abuse/neglect

I can’t think of a scenario that clients of ours have been in that has resulted in more immediate concern for the safety of their children than when abuse/neglect/family violence is in the picture. It is an unfortunate reality for many families that violence or the lingering possibility of violence or abuse is something that is a daily occurrence.

There are many, many factors at play in these situations and the space we have available to us won’t allow for a thorough discussion of them, unfortunately. Suffice it to say, however, that as long as there are facts in play that support the existence of abuse or neglect of a child that an SPO may not be appropriate. In fact, I would argue that to not limit a possessory conservator’s access to a child when family violence is an issue would be dangerous behavior for a judge to undertake.

You and your attorney would need to come up with a plan to limit your spouse’s access to your child in the future if he or she is found to be unstable or capable of violence. Perhaps limiting him or her to supervised visitation, to begin with, and then working him or her up to more standard visitation in the future is appropriate? Either way, if you and your spouse cannot agree to these sort of limitations in the negotiation then you need to be prepared to voice your concerns and propose solutions to a judge.

Keep in mind that while I would not say most families see regular violence as a reality, many families have at some point in their history. Even if that violence is “limited” to a push or shove on a one-time basis, it can have an effect on how families work together when it comes to raising a child. With that said, it is not especially persuasive to bring up a six-year-old incident involving you and your spouse where you ended up feeling “threatened” because of the way that your spouse looked or spoke to you. While your spouse may not have behaved appropriately, their actions don’t necessarily justify supervised visitation, for example.

Courts like definite language to be included in an Order

Final Orders in a divorce case are just that- orders. They are not suggestions or encouraging words from a judge. IT IS ORDERED is a phrase that will be repeated time after time in any final decree of divorce. IF you don’t believe me feel free to look at a sample final decree of divorce.

The Texas Family Code wants judges to have firm language included in orders so that in the future if the need arises either party can come back and seek enforcement against the other if portions of the final orders are violated.

How you can continue to learn about your family’s situation before a trial

Many courts across Texas are issuing orders that relate to parents attending parenting courses before the issuance of final orders in their child custody or divorce case. Many of the smaller counties around the Houston area- Ft. Bend and Montgomery Counties come to mind- are pretty stringent that your case cannot proceed to trial without both you and your spouse attending these classes (separately).

While many people blow the courses off as nothing more than a formality that needs to be done before getting down to the nitty-gritty of a trial, these courses can help you by showing the effects of a divorce on your family and how an inability of parents to work together after a divorce can harm the development of children. Working to communicate effectively and minimize the distress of your child are other lessons offered in these type of classes.

It is nearly unavoidable in my experience that you and your ex-spouse will run into problems of some sort after your divorce concludes. This is not being pessimistic, this is just the reality of having to work with a person that you disagree with on fundamental issues. However, if you can learn how to problem solve through difficult situations an how to resolve disputes effectively you need to come back to court decrease a great deal. Furthermore, whatever possession schedule you all ultimately arrive at can be worked with and around based on the particular circumstance you all are encountering.

What does your final decree of divorce need to say regarding possession to be enforceable?

An order’s main job is to hold you and your ex-spouse accountable. An SPO is great for families with consistent work schedules and no conflicts between parents, but that is not the reality for many families in Texas. There is a possibility that you and your ex-spouse could be in the discussion for years into the future about what is right for your child if you cannot agree to a flexible and functional possession schedule prior to the end of your divorce.

Rather than punting the issue of possession down the road by telling one another that you will work together in the future to come up with a schedule as time goes by, it is smarter to take some time to add language to your final decree of divorce that addresses whatever unique circumstances are apparent in your lives.

There needs to be a middle ground reached between a flexible agreement and one that is straightforward enough to both be followed and to be held to be enforceable by a judge in the future.

Specific solutions for problems associated with young/older children and split custody

If you are a parent who is seeking 50/50 custody with your spouse or are parenting a teenager or toddler, the content of tomorrow’s blog post will be especially interesting for you.

In it, we will describe some specific solutions to problems that parents in these scenarios often find themselves in.

Questions about creative solutions to real-world problems in family law? Contact the Law Office of Bryan Fagan, PLLC

If you are in need of an experienced and effective attorney to represent you and your family in a family law case please consider the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations with licensed family law attorneys where we can meet with you to answer questions and address problems in your life. It is our honor to serve and represent the people in our community and we look forward to the possibility of doing the same for you and your family.


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Other Articles you may be interested in:

  1. Supervised Visitation in a Texas Divorce: Can it happen to me?
  2. Texas Emergency Custody Order Guide
  3. Child Custody Basics in Texas
  4. Texas Child Visitation Modification
  5. 10 Quick Tips About Parental Visitation
  6. Texas Parental Visitation – Texas Standard Possession Orders in Harris and Montgomery County, Texas – Part 1
  7. Texas Parental Relocation
  8. Geographic Restrictions in Child Visitation Orders in Texas

Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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