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Possession Orders explained for Texas family law cases

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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At the Law Office of Bryan Fagan, PLLC, the firm wants to get to know your case before they commit to work with you. They offer all potential clients a no-obligation, free consultation where you can discuss your case under the client-attorney privilege. This means that everything you say will be kept private and the firm will respectfully advise you at no charge. You can learn more about Texas divorce law and get a good idea of how you want to proceed with your case.

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