Custody

In Texas, visitation is called possession of and access to a child. A parent can get possession and access unless the judge determines it is not in the best interests of the child and will endanger the physical or emotional well-being of the child.¹

During the time that a parent has possession of his/her child, s/he has:

• the duty of care, control, protection, and reasonable discipline of the child;
• the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
• the right to consent for the child to medical and dental care not involving an invasive procedure; and
• the right to direct the moral and religious training of the child.²

A judge will create a visitation schedule, called a standard possession order, using certain guidelines.  A standard possession order is used for children three years of age or older.³   For a child less than three years old, the judge will create a visitation schedule that s/he thinks is appropriate.⁴  See What factors will a judge consider for a child who is less than three years old? for more information.

A possession order can be changed to meet the particular needs of the managing conservator(s), possessory conservator and the child(ren).⁵

¹ Tex. Fam. Code § 153.191
² Tex. Fam. Code § 153.074
³ Tex. Fam. Code § 153.251
⁴ Tex. Fam. Code § 153.254
⁵ Tex. Fam. Code § 153.253

If the possessory conservator lives 50 miles or less away from the primary residence of the child, the possessory conservator will usually have the right to possession of the child for the following times in addition to the times given to a parent who lives within 100 miles:

1. on weekends during the regular school term, beginning when school is regularly dismissed and ending when school starts after the weekend;
2. on Thursdays of each week during the regular school term, beginning when school is regularly dismissed and ending when school starts on Friday;
3. for spring vacation in even-numbered years, beginning when school is dismissed;
4. for Christmas vacation in even-numbered years, beginning when school is dismissed for the holiday;
5. for Thanksgiving vacation in odd-numbered years, beginning when school is dismissed for the holiday;
6. for Father’s Day, if the possessory conservator is the father, beginning at 6 p.m. the Friday before and ending at 8 a.m. the Monday after the holiday;
7. for Mother’s Day, if the possessory conservator is the mother, beginning when school is dismissed the Friday before and ending when school starts the Monday after the holiday;
8. for weekends that are extended by a holiday or teacher in-service day that falls on a Friday, beginning when school is dismissed on Thursday; and
9. for weekends that are extended by a holiday or teacher in-service day that falls on a Monday, ending at 8 a.m. on Tuesdays.¹

Note: Regarding numbers six and seven, above, the law doesn’t address a situation in which a child has two mothers or two fathers. If this is your situation, you may want to talk to a lawyer for advice.

These nine additional times, listed above, for a possessory conservator who lives within 50 miles will not be added to the order, however, if any of the following apply:

• the possessory conservator declines one or more of the additional times either orally in front of the judge or in a written document filed with the court;
• the judge denies or limits the possessory conservator’s time with the child because it is in the child’s best interest; or
• the judge decides that any of the additional times are not in the child’s best interests because:
  
  • the distances between the parents’ homes make it unworkable or inappropriate considering the parents’ circumstances or where the parents live;
  • the possessory conservator did not frequently and continuously exercise the rights and duties of a parent with respect to the child before the custody case was filed; or
  • any other reason exists that the judge considers relevant.²

¹ Tex. Fam. Code § 153.3171(a)
² Tex. Fam. Code § 153.3171(b)

If the possessory conservator lives more than 100 miles from the residence of the child, the standard possession schedule for the possessory conservator would likely be different than the schedules for when a parent lives within 50 miles or within 100 miles. In this situation, the possessory conservator will usually have the right to possession of the child for the following times:

1. for weekends, either:
   • 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; or
   • not more than one weekend per month that the possessory conservator chooses, beginning at 6 p.m. on the day school lets out for the weekend and ending at 6 p.m. on the day before school resumes after the weekend. Note: For this option, the possessory conservator would have to give the other parent:
     • written notice within 90 days of moving more than 100 miles away; and
     • notice in writing or over the phone at least 14 days before choosing the weekend for the visit;
2. for spring vacation, beginning at 6 p.m. on the day the child is dismissed from school for the vacation and ending at 6 p.m. on the day before school resumes after the vacation; and
3. for summer vacation, either:
   • 42 days, beginning no earlier than the day after school is dismissed for the summer and ending no later than seven days before school resumes. The 42 days can be taken all at once or in two separate periods of at least seven consecutive days, beginning and ending at 6 p.m. if the possessory conservator gives the managing conservator notice about the chosen dates by April 1; or
   • 42 consecutive days beginning 6 p.m. on June 15 and ending at 6 p.m. on July 27 if the possessory conservator does not give the managing conservator notice of the chosen dates by April 1.¹

Note: The managing conservator may still get to see the child during the possessory conservator’s 42 days of summer vacation. See When can the managing conservator have the child during the summer when the parents live more than 100 miles apart?

¹ Tex. Fam. Code § 153.313(1), (2), (3)

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised.  If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).

However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits.  We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the majority of cases, supervised visits are only a temporary measure.  Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised.  Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to TX Finding a Lawyer to seek out legal advice.