One of the most common issues we encounter as divorce lawyers is the issue of possession and custody of a child after parents are divorced.
Do we need to have a schedule for seeing my child?
No, parents after a separation or a divorce do not have to abide and follow a schedule where as to have possession of your child. This works only when the parents are able to work with each other for the benefit and best interest of the child. Section 153.311 of the Texas Family Code provides for mutual agreement or specified terms for possession for parents who are no longer together in raising their child. Under the code, the court shall specify in a standard possession order that the parties may have possession of the child at times mutually agreed to in advance by the parties and, in the absence of mutual agreement, shall have possession of the child under the specified terms set out in the standard possession order.
So what if we can not agree on the times of possession?
When parents can not agree mutually as to the times of possession with the child, the Texas Family Code provides for a visitation schedule for parents who live within 100 miles or less apart from each other as follows:
(a) If the possessory conservator resides 100 miles or less from the primary residence of the child, the possessory conservator shall have the right to possession of the child as follows:
(1) on weekends throughout the year beginning at 6 p.m. on the first, third, and fifth Friday
of each month and ending at 6 p.m. on the following Sunday; and
(2) on Thursdays of each week during the regular school term beginning at 6 p.m. and ending
at 8 p.m., unless the court finds that visitation under this subdivision is not in the best
interest of the child.
(b) The following provisions govern possession of the child for vacations and certain specific holidays and supersede conflicting weekend or Thursday periods of possession. The possessory conservator and the managing conservator shall have rights of possession of the child as follows:
(1) the possessory conservator shall have possession in even-numbered years, beginning at 6
p.m. on the day the child is dismissed from school for the school’s spring vacation and
ending at 6 p.m. on the day before school resumes after that vacation, and the managing
conservator shall have possession for the same period in odd-numbered years;
(2) if a possessory conservator:
(A) gives the managing conservator written notice by April 1 of each year specifying
an extended period or periods of summer possession, the possessory conservator
shall have possession of the child for 30 days beginning not earlier than the day
after the child’s school is dismissed for the summer vacation and ending not later
than seven days before school resumes at the end of the summer vacation, to be
exercised in not more than two separate periods of at least seven consecutive days
each, with each period of possession beginning and ending at 6 p.m. on each applicable
(B) does not give the managing conservator written notice by April 1 of each year
specifying an extended period or periods of summer possession, the possessory
conservator shall have possession of the child for 30 consecutive days beginning at
6 p.m. on July 1 and ending at 6 p.m. on July 31;
(3) if the managing conservator gives the possessory conservator written notice by April 15
of each year, the managing conservator shall have possession of the child on any one
weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during
one period of possession by the possessory conservator under Subdivision (2), provided
that the managing conservator picks up the child from the possessory conservator and
returns the child to that same place; and
(4) if the managing conservator gives the possessory conservator written notice by April 15
of each year or gives the possessory conservator 14 days’ written notice on or after April
16 of each year, the managing conservator may designate one weekend beginning not
earlier than the day after the child’s school is dismissed for the summer vacation and ending
not later than seven days before school resumes at the end of the summer vacation,
during which an otherwise scheduled weekend period of possession by the possessory
conservator will not take place, provided that the weekend designated does not interfere
with the possessory conservator’s period or periods of extended summer possession or
with Father’s Day if the possessory conservator is the father of the child.
(c) Notwithstanding Section 153.316, after receiving notice from the managing conservator
under Subsection (b)(3) of this section designating the summer weekend during which the managing conservator is to have possession of the child, the possessory conservator, not later than the 15th day before the Friday that begins that designated weekend, must give the managing conservator written notice of the location at which the managing conservator is to pick up and return the child.
In re S.A.H., 420 S.W.3d 911 (Tex. App.—Houston [14th Dist.] 2014, no pet.). A court may deviate from the terms of
the standard order, if those terms would be unworkable or inappropriate and against the child’s best interest, but it
must include in the order the reasons for any deviation. In ordering terms other than those contained in a standard
order, a court may consider (1) the age, developmental status, circumstances, needs, and best interest of the child; (2)
the circumstances of the managing conservator and of the parent named as a possessory conservator; and (3) any
other relevant factors.
It is also advisable for parents litigating a custody or possession case that a trial court may in many cases in Texas has properly considered the children’s young ages and their need to stay in a close relationship with their father, with whom they primarily resided, when it found that separating the mother’s two periods of fourteen-day summer possession by a period of at least fourteen consecutive days was in the best interest of the children based on a doctor’s recommendation that the couple’s children should not be removed from either parent for longer than two weeks without a weekend in between.
In another case, the trial court did not abuse its discretion by prohibiting a father from driving while his children were passengers and limiting his access to the children to sixty-four hours per month without provision for holidays, summer visitation, birthdays, or Father’s Day when the father had committed acts of family violence in the presence of one or more of the children, demonstrated a history of chronic alcohol abuse, terrorized one or more of the children by operating his vehicle while under the influence of alcohol while the children were passengers, consumed alcohol during periods of supervised visitation, and agreed prior to the divorce to arrange transportation from his home to the children’s home at end of his periods of possession.
In the case, In re Davis, 30 S.W.3d 609 (Tex. App.—Texarkana 2000, no pet.). The Court found that given a six-year-old child’s routine and the difficulty her father encountered in driving the two-hour round trip between their homes during the middle of the school week, the evidence supported the trial court’s finding that to allow the father overnight midweek visitation would not be in the child’s best interest.
As a divorce attorney, it is important to advise parents that the courts will also rule on the Best Interest of a Child when the issues of possession are before the Court. A parent may have an opinion as to what possession schedule he or she should have; however, there are always motives on behalf of the parent that will create a situation where the Court may not award either parent the type of visitation and possession that the parent believe is best for “them”.