One of the things that I think people find most disconcerting about a divorce or child custody case is the lack of control that they feel in regard to the case. There is something about putting your faith in the legal system and its attorneys, judges and other various professionals that can be a little intimidating and very unpleasant for some people. I completely understand that. As a parent, you want to have direct control over what happens with your child and to be able to take ownership on the things that are most important to raising that child. One of the realities of a family law case is that you lose a certain degree of control over your life and that of your child once you become a part of a family law case.
Family courts in Texas are a give and take process if you are considering becoming involved in a case. Family courts can give you security in that the court orders that family court judge produces will allow you to have a stable and solid understanding of time that you can spend with your child, child support that you either will pay or receive as well as rights and duties in relation to your child. For some parents your life may not change all that much after family court if you have been practicing parenting along the lines of what your family court order mandate. For other parents, a family court experience will be a little bit jarring because their life and how they parent their child will change somewhat as a result of having gone through the process.
In a way, you are giving up some control to gain some control. I talk with parents on a frequent basis who are unable to see their child because a co-parent or ex-spouse no longer allows him or her to do so. The reasons why range from the failure to pay child support to no reason at all in particular. If nothing else, going through a family law case will allow you to have something solid and enforceable in the future if your co-parent decides to exert control over your child that is unfair as far as your ability to engage in visitation with him or her. The path of every family law case is unique but almost always it is the case where you have an opportunity to work with your opposing party to create court orders that are in the best interests of your child.
In today's blog post from the Law Office of Bryan Fagan, I would like to spend some time discussing with you what visitation is in regard to a family law case, how visitation could end up looking for you and your family and what control you can exert over who sees your child during your periods of visitation. After all, by the end of your child custody or divorce case you will have worked very hard with your attorney to come up with a court order that you believe is fair. After all the hard work you put into that court order you do not want to put yourself in a position where you have questions or are left with an order that is lacking in some regard as far as your ability to determine the course of your visitation with your child.
Visitation in possession of your child after a divorce or child custody case
As a result of your divorce or child custody case, you will very likely be awarded possession and visitation rights with your child. I say very likely to be awarded only because there are rare circumstances were apparent does not have visitation or possession rights to their child after the conclusion of a child custody or divorce case. However, these cases are few and far in between and usually issues like drug abuse, alcohol abuse or violence play into the inability to spend time with your child after a case like this. I won't assume that this is the case with you and your family so we can move on to discuss what visitation and position are likely to look like for your family at the conclusion of your child custody or divorce case.
At the end of your child custody or divorce case either you or your opposing party will be named as the parent who has the right to determine the primary residence of your child. This may sound a little clunky to you but the main point of having this right is being able to choose where your child lives on a full-time basis. This means your child will be residing with you throughout the year and your co-parent will have Visitation rights. Having the right to determine the primary residence of your child not only allows for you to have more time with your child throughout the year but it also allows you to receive child support from your co-parent if that is appropriate in your circumstances. As a result, this is a highly sought-after designation for parents and if you are interested and becoming the primary conservator of your child then you should make that goal known to your attorney at the beginning of your case.
The primary conservator of your children will be able to have the kids home with you during the school week and on weekends that are not designated to the possessory conservator. Depending on how your family divides up the year as far as possession of your children are concerned, I think it is something like 56 or 57% of the available days of the year with your child are to be spent with the primary conservator. Other days will be designated for the possessory conservator.
On the other hand, you may also be named as the possessory conservator of your child at the conclusion of your child custody or divorce case. A possessory conservator of a child has many of the same rights and duties as the primary conservator except that you will not be able to determine the primary residence of your child. As we have already discussed this means that you will likely lose time relative to your Co parent with your child based on the schedule that you work out together. This does not mean that you will not have any time with your child nor does it mean that you will lose the ability to determine the activities you can engage in with your child. All it means is that the time periods that you are able to spend with your child will be designated in your family court order.
As such, it is very important for you to be able and willing to negotiate with your co-parent when it comes to devising a plan for possession and Visitation during the year. I note that a standard possession order typically divides time with your child in a 57/43 manner as far as percentage of time your child will spend with your Co parent and the percentage of time their child can spend with you. However, this does not have to be the plan that you and your family abide by and you all are free to choose an alternative as far as possession and visitation are concerned.
The plan that you all choose can be extremely creative and based on the specific circumstances of your family. For instance, if you have young children who are very attached to both you and your spouse then having a position schedule where you alternate two days of Visitation here or three days of visitation there may be what is in their best interests right now. This allows your children to be able to take advantage of flexibility in their own schedule as well as the need to develop a strong and nurturing relationship with both you and your co-parent.
On the other hand, if your children are older and engaged in extracurricular and school activities then a possession and visitation schedule that allows for longer stretches of possession with each parent maybe what works better for your family. For instance, if your child is able to drive him or herself then a circumstance where he or she spends one week with one parent and another week with another parent throughout the school year may work better. I say this because older children have more commitments to their time schedule and in a time crunch you likely won't want your child to have to drive back and forth in between parents houses on a daily or semi daily basis. Rather, why not allow your child to take longer stretches with each parent at a time especially when he or she is at an age where they do not feel the emotional need to be with both you and your co-parent on a regular basis?
Of course, all of this is dependent upon the specific circumstances of your case. For instance, if you and your Co parent decide to live very close together then the Sky is the limit as far as Visitation in position options. Not having to drive along way to see when your children allows you all to create some very creative possession and visitation structures where time and logistics are not as big of a concern. On the other hand, if you have been forced to move due to a job relocation, change in industry or anything else related to the coronavirus pandemic then your options as far as possession and Visitation may be more limited.
This is where your ability to work with an experienced family law attorney and eventually work with an experienced mediator can help you and your family to maximize the opportunities available to you as far as possession and Visitation are concerned. It is not to be expected for you to have all the answers when it comes to creating a solution that works well for your family in a post-divorce or child custody world. However, it is incumbent upon you and your spouse to be able to work with attorneys and other legal professionals who can help you all take your goals and set them into motion so that your child reaps the benefit of possession and Visitation with both of you after a family law case.
As far as your being able to decide who is able to spend time with your child during your periods of possession then you have nearly complete autonomy to make these type of decisions. There is a presumption in Texas family law that parents act in the best interest of their children. With this in mind, you are essentially free to determine who you want to expose your child to and who you do not want to expose your child to.
For example, you do not have to allow your parents or your ex-spouse’s parents to have access to your children during your periods of possession. Many people assume that grandparents have vested rights in being able to visit with their grandchildren, but this is not the case. Since you as a parent have the primary right to make decisions in regard to what is near children's best interests you can decide to deny other people Visitation with your kids while you are in possession of them. Keep in mind that the same goes for your coparent when he or she is in position of your child so you cannot choose who your child spends time with when your kids are with the other parent for the most part.
Questions about possession or visitation in the Texas family law case? Contact the Law Office of Bryan Fagan
if you have any questions about the material that we have covered today please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person over the phone in via video. These consultations are a great way for you to learn more about Texas family law as well as the services that our law office can provide to you and your family as clients.