Visitation and Possession

Child Visitation in Texas

If you have children and you do not live with the other parent – there will be child visitation issues to deal with, and that most likely means you have or will need court orders to resolve any conflicts. I tell my clients, “It is not IF you have an issue, it is WHEN you have an issue that requires the Court to issue orders.”

It is important to understand, both parents have equal rights and responsibilities toward their child. At least one time per week I have to tell someone, usually the Mom, “Both Mom and Dad are equal under the law until a Judge says otherwise.” When the parents live together, this is not as large a problem – though it is a common cause of divorce. However, when the parents of a child do not live together, exercising those rights and responsibilities can and most certainly will become a problem. Obviously, the child cannot live in two places at the same time and the parent with physical possession has the right to control the activities of the child during his/her periods of possession. Court Orders are designed to resolve conflicts before they happen by telling parents to agree, and when they cannot agree, follow the orders.

A court order may be called a Decree of Divorce, a Order in Suit to Establish Paternity, or an Order In Suit Affecting The Parent-Child Relationship. Regardless of its name, the order will always identify the parents, the child, and the rights and responsibilities of each parent as well as setting out the times when each parent has a superior right of possession.

In Texas, Child Custody Orders almost always start by stating the parents can each have possession of the child(ren) at all times mutually agreed to by the parties. This is the statement that Judges include to allow parents to be responsible adults and work together for the best interest of their child. If two parents can agree it is best, the Judge has no desire to say otherwise. Plus, there is a distinct benefit to the children when their parents support each other’s decisions and provide clear guidelines and expectations. The problem with working together for the child’s best interest is that it sometimes requires the parents to set aside their personal feelings. When parents cannot agree on child visitation and possession the court is guided by the Texas Family Code, which sets out “standard” rights and responsibilities of each parent, a.k.a the Standard Possession Orders.

Standard Possession Orders assume both parents will have joint managing rights to make the major decisions including visitation, the right to consult with doctors, school teachers, etc. It further assumes one parent will be named the “primary conservator” with the right to decide where the child will live, and the other parent will be named the “possessory conservator” with the right to possession and access at all times mutually agreed and if no agreement is made on the 1st, 3rd, and 5th weekends of each month, 30 days in the summer, Thursday evenings during the school year and alternating holidays.  Since this issue comes up often, the Standard Possession Orders define a weekend as beginning on Friday. 

In Texas, we use the term conservator in all custody orders. A “conservator” is a parent or other person with court ordered rights with respect to a child. Conservators can be “joint” meaning the conservators share responsibilities, or “sole” meaning one conservator makes all the decisions. Please note: conservatorship is NOT directly tied to visitation, and sole conservatorship does not mean “sole custody” as that term is routinely used by parents.

A conservator of a child has the following rights at all times:

1) to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
2) to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
3) of access to medical, dental, psychological and educational records of the child;
4) to consult with a physician, dentist, or psychologist of the child;
5) to consult with school officials concerning the child’s welfare and educational status, including school activities;
6) to attend school activities;
7) to be designated on the child’s records as a person to be notified in case of an emergency;
8) to consent to medical, dental and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
9) to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.

Standard rights and duties of a conservator during periods of possession:

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