Possession & Access
A possession and access schedule is a specific schedule for families to follow so that the children and both parents have a predictable outline for when the children will be with each parent. Orders in Texas include language that these schedules are “in the absence of mutual agreement.” This means that the parents can agree to be flexible with the schedule if that works for their children and their family, but should they fail to reach a mutual agreement, there is a schedule to fall back on.
Possession and access schedules can vary greatly depending on the circumstances of the children. The court will look at evidence of both parents involvement in the children’s day-to-day lives, what the children are accustomed to, the special needs or circumstances of the children, and the distance between the parents’ homes (among many other factors), to determine what is in the best interest of the children.
Standard Possession Order
In Texas, the vast majority of possession schedules contained in orders are Standard Possession Schedules. These schedules provide that the kids reside with one parent on Mondays, Tuesdays, and Wednesdays of each week and the second and fourth Fridays and weekends of the month, and the other parent on Thursdays of each week and the first, third and fifth Fridays and weekends of the month. The holiday and summer periods of possession are divided up equally between the parents.
In some circumstances, the court, or the parents by agreement, may make minor tweaks to the Standard Possession Order to make it work best for their children.
The Standard Possession Order is typically the schedule that courts impose for parents that can’t agree on a possession schedule on their own. Various circumstances may warrant a deviation from what is considered “typical,” and may require a further examination by the court to determine what is in the best interest of the children.
50/50 Possession
Some parents believe that a Standard Possession Order is not what is best for their kids. Others may allege that they have jointly and equally shared in raising their children during their marriage, and that should not change because they are divorcing. In these instances, some parents will request a possession schedule that provides equal amounts of time with both parents (a 50/50 schedule). There are many ways to craft a 50/50 possession schedule; parents may alternate weeks, divide the week in half and alternate weekends, or develop some other arrangement that divides time equally over the year.
Requesting any schedule that deviates from the Standard Possession Order is nuanced and fact specific.
Creative Possession Schedules
Some circumstances necessitate a more creative approach to formulating a possession schedule. Some examples include when one parent is a pilot or first responder, and their work schedules are not consistent from month to month or even week to week. We can assist you in advocating for creative solutions that accommodate the children’s needs and your need to work and support your family.
When children are under the age of three, courts will also typically impose a creative schedule for possession. The courts believe that with small children, frequent and short periods of possession are considered best so that both parents can see the child regularly, bond, and allow the baby to form a healthy attachment to both parents. Factors such as nursing, co-sleeping, and the ages of other siblings can contribute to what schedule type is best for a child under the age of three.
These schedules can change over time. As the children get older and involve themselves in academic obligations and extracurricular activities, the possession schedule may need to be modified to reflect their preferences and schedules.
Supervised or Contingent Possession
Unfortunately, many situations necessitate a more restrictive possession schedule to ensure the safety and well-being (both physical and emotional) of the children. These restrictions may be due to drug use, alcohol abuse, family violence, or an untreated mental impairment. The court may also impose limits on possession if a parent is a flight risk. In these instances, the court can order limited periods of possession and/or that the periods of possession be supervised by a professional that is adept in not protecting the physical safety of the children, as well as providing feedback and counseling on the emotional well-being of the children while in that parent’s care. Another option, specifically in cases involving drugs and/or alcohol, is a possession schedule that is contingent on the parent submitting to testing before and during periods of possession to ensure they are not under the influence of drugs or alcohol.
Fortunately, we have many means of assessing and addressing these circumstances. We understand that your child’s health, happiness, and safety are of the utmost importance, and we will use every tool in our power to advocate for your family as if they were our own.
Forensic Psychological and Custodial Evaluations
In high-conflict cases and cases involving mental impairment, drug/alcohol issues, or physical abuse, a court-ordered psychological evaluation of the parents or a custody evaluation of the family may be appropriate. In Texas, courts may order a qualified psychologist to conduct a forensic psychological evaluation and child custody evaluation to determine the nexus between each party’s psychological functioning and parenting skills.
The evaluator will conduct interviews with parents, children, and additional caregivers, as well as collateral witnesses such as teachers, friends, and family members. Additionally, the assessment will include a thorough and detailed analysis of the child’s medical history, mental health, and education records. The custody evaluator will perform supplementary tasks and interviews to evaluate the functioning of the parenting and the impact of their parenting on the children and, ultimately, to make recommendations to the court.
Guardian Ad Litem
In Texas, the court may appoint a guardian ad litem to advocate for the best interest of the child or to perform a task directed by the court. These tasks may include interfacing with court-ordered custody or forensic evaluators, acting as a spokesperson for the child’s care team, aiding the child, or managing other narrow tasks.
Great care must be taken to make sure that the guardian ad litem does not stray from their position’s initial, limited scope. Taking on additional responsibilities may impede on the roles of the evaluators and therapists for the parties and child, so it is crucial you hire a lawyer who understands the differences and the associated implications.
Conservatorship
‘Conservatorship’ is how parents make decisions. In conservatorship, the three most important duties are the rights to make medical, educational, and psychological decisions for the child. These decisions can either be made jointly by agreement, independently by each parent, or allocated between the parties. For example, if one parent makes all medical decisions and the other makes all educational decisions, then the conservatorship is allocated between the two parents.
Additionally, the right to designate the primary residence of the child is determined by one parent or by a specific geographic boundary, and the right to receive child support may be awarded to one of the parents.
Rights of Extended Family and Stepparents
Under Texas law, when a couple gets a divorce, former stepparents usually have limited legal ability to maintain a relationship with a former stepchild. The law often views these parties as ‘interested third parties’ and allows them to petition the Family Law Court and formally request visitation, as this visitation is not automatic. If either biological parent objects to the visitation, the court will be inclined to deny visitation. The key word here is ‘inclined.’ After all, in some cases, that stepparent may be the only or the first mother-figure or father-figure in the child’s life—it wouldn’t be fair to deny the child access to them.
Although this type of case is difficult, if you are seeking legal rights to continued involvement with a stepchild, our attorneys have the experience necessary to provide you guidance inside and outside the courtroom during a time when the facts specific to your case matter more than anything. In some cases, the court may even grant visitation despite the biological parent’s objections. Factors the court may consider include the following:
How long was the child-stepparent relationship? The longer the relationship, the more weight the court is likely to give the request.
How emotionally close are the stepparent and child? Children may be interviewed in the Judge’s chambers to give them a chance to express their preference.
How active is the stepparent in the child’s life? Has the stepparent been involved with the children in extracurricular activities? Have they attended parent/teacher conferences?
Has the stepparent contributed to the financial support of the child?
Will it be detrimental to the child if the visitation request is denied?
The court will consider the factors listed above and the facts specific to the case to determine what is in the best interest of the children.
Biological parents aren’t the only people who advocate for the rights of children. When a parent dies, CPS becomes involved, or a parent is otherwise impaired, stepparents and grandparents can find themselves in the position of fighting for the best interests of children in their family. These parties face exceptional hurdles, but experienced attorneys like ours know how to navigate these seemingly insurmountable roadblocks. These cases are rare and incredibly specialized, so finding aggressive and experienced attorneys can be challenging. At Morgan S. Richardson Law, we have the experience and the skills necessary to give you guidance regarding your rights and options to handle these difficult cases.