Visitation & Possession

Texas law describes visitation as possession and access. The parent who gets visita­tion is the person with whom the child does not primarily live. There are several types of visitation in Texas, (1) standard possession order (“SPO”), (2) modified possession order, (3) modified under age three possession order, and (4) supervised visitation order.

Generally, the courts will allow the parties to work out an arrangement between themselves that they believe is best for the child. The parents can usually schedule visits by agreement, but when they cannot agree, the court order is considered the “back up.”

Sometimes, the court will not allow or will restrict visitation due to a history of family violence or a potential dan­ger to the physical or emotional welfare of the child. If visitation will be limited, the court may order the visitation be supervised with a neutral third party or a private organization that provides supervised visitation options to parents. If a private agency is used, the visiting parent may be responsible for payment of the agency’s fees to visit the child. Absent such a limitation, the parties may agree on different schedules and times even though they have a specific court order. Some believe it is best to follow the terms of the court order so each parent knows the schedule in advance and consisten­cy is maintained for the child.

What is the standard possession order? Visitation arrangements can have many variations. In fact, parents may agree to almost any schedule regarding visitation. However, if parents cannot agree, child visitation will generally follow a schedule developed by the Texas legislature that is designed to be fair and workable for both par­ents in most circumstances.

Generally, the standard possession order (“SPO”) provides that the possessory (visiting) parent is granted visitation of the child beginning at 6:00 p.m. every first, third and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday, as well as every Thursday evening, from 6:00 p.m. to 8:00 p.m.

The possessory parent may request an extended version of this schedule (called “the Election”) where he or she would have posses­sion of the child from the time school is dismissed on the first, third and fifth Fridays until school resumes on Monday morning, and on Thursday evenings from the time school is dismissed until Friday morning. All holidays, including Thanksgiving, Christmas (winter) and spring break are divided between the parents, giving one par­ent the right to spend a particular holiday with the child every other year. The SPO also provides for the possessory parent to have thirty (30) days with the child during the sum­mer, or forty-two (42) days if the child lives more than 100 miles away from the other parent. If the visiting parent lives over 100 miles away, that parent would also be given posses­sion of the child every year for spring break.

What is a modified possession order? A modified possession order means that the terms of possession are changed from the typical standard possession order (described above).  The modified possession order terms will vary, depending on the needs of the parents, the age of the child, and specific issues of the case.  Some examples of modifications may be adding additional visitation time as the child increases in age, or accounting for a parent’s work schedule.  People who work shifts, like firefighters, prison guards, DPS troopers, and others, often cannot make a SPO work for them, due to their work schedule.  The court will try to craft a possession order that will work best for them and for the children.

What is a modified under three possession order? The court may consider the needs of a child to determine if visitation should be limited while the child is under the age of three (3). This modified order may state the child shall not have overnight vis­itation with the other parent until the child reaches a certain age. For example, the order may state the child visit on Saturday and Sunday from 10:00 a.m. to 4:00 p.m. or in the evenings from 6:00 p.m. to 8:00 p.m. The court will consider the age and needs of the child, including the child’s normal structure and routine, as well as the history of each parent’s involvement with the child. If the visiting parent has already established a schedule of caring for the child overnight, it is unlikely the court will put new limitations on the visiting parent’s schedule. If such limitations are put in place until a child reaches a certain age, the parent who has primary possession of the child is expected to cooperate with the visiting parent to insure the visiting parent has ample visitation time without unreasonably disrupting the child’s routine and environment. Both parents should also provide the other with a list of the child’s schedule and rou­tine while the child has been with him or her so the schedule may be maintained.

What happens if the parent refuses to follow the visitation order? If a parent refus­es to let the other parent have possession of the child pursuant to the terms of the court order, the remedy is to go back to the court and ask the judge to make them comply with the order. The parent asking the court to enforce the order must show proof they did everything they were supposed to do and the other parent failed to turn over the child. For example, if that parent is supposed to pick up the child on Friday at 6:00 p.m., he must describe to the court each incident where he appeared at the right time and place and the other parent failed to surrender or release the child. If the court orders the parent to comply with the order and the parent still refuses, the other par­ent may also ask the court to issue a criminal contempt citation. If the court finds the parent guilty of criminal contempt, the punishment may be jail time and/or a fine.

What happens if the parent who is supposed to visit does not visit the child? You cannot force a parent to visit his or her child. There are no legal remedies to make a parent exercise his or her visitation rights. The parent with whom the child primarily lives has to make the child available according to the terms of the visitation order, but if the parent does not want to visit then there is nothing the court can do. However, failure of a parent to visit the child may become an important issue if there are later court hearings regarding conservatorship and possession issues.

What happens if I want to move? The geographical restriction is on the child, not the parents. This means if the parent who has primary possession of the child wants to move, he or she can, but the child cannot move if there is a geographical or domicile restriction in the court order.  Normally, if the order has a specific geographical restric­tion on the child and the possessory parent still lives within that area, the parent who has primary possession of the child must get the written agreement of the other par­ent before he or she can move. This written agreement should be filed with the court.  If there is no agreement, the parent wanting to move must obtain permission from the court. The court will require the moving parent to show what substantial change in circumstances is requiring the move and how the move will be in the best interest of the child.

The parent must show the court why the move away from the other parent would be best for the child, and explain how he/she will assist in helping the visiting parent continue a frequent and meaningful visitation schedule with the child. If the possessory parent has moved away then it is possible the court’s approval is not need­ed if the parent with primary possession wants to move, but this depends on the terms of the order and the moving parent should read over the terms carefully.

What happens if a parent disregards the geographic restriction? If the primary care parent disregards the order and moves without the agreement of the other parent or the court, the visiting parent can go to court and request the court enforce the terms of the geographic restriction. The court could force the parent to bring the child back to the location where the visits were supposed to take place, even if the parent has moved out of state. This may have the affect of the moving parent being forced to move back, or losing the right to have the child primarily reside with him or her.

What if there is no geographical restriction? If there is no geographical restriction in the order, the parent is free to move wherever and whenever he/she wants. The par­ent with whom the child visits may not prevent the parent from moving without going to court and getting the court to modify the prior order.

Do I have to make my child visit if the child does not want to go? YES! The only exception to this rule is if a parent believes the child may be in danger if the visit occurs. If the parent suspects the child may be in danger then he/she should contact the appropriate law enforcement or child protection agencies. The parent should also file an emergency motion with the court asking the court to suspend the visitation because the child is in danger. A parent cannot refuse to send the child for a visit because the child does not like the other’s parent’s house, neighborhood, spouse, boyfriend or girlfriend, or just because they are having a bad day. Texas law requires that the parent make the child available for visitation unless the parent goes back to court and gets a different court order. The parent is not allowed to alienate the other parent and, even if the parents do not like each other, the child should always be encouraged to visit the other parent.

Do I have to let the other parent visit if he/she doesn’t pay child support? YES! The order for child support and the order for visitation are completely separate. The court looks at this from the child’s point of view No matter what, that parent is still the child’s father or mother. Whether or not the parent is paying child support, the child still has a right to a meaningful relationship with his/her parent. Similarly, even if the parent ordered to pay child support does not or is not allowed to visit, he or she still must pay support.

What happens if the parent shows up late to pick up the child? The parent who is supposed to visit the child should make every effort to pick the child up on time. If the parent is going to be late, he or she should notify the other parent. If the parent shows up within 15 minutes of the appointed time, then the other parent should go ahead and let the child go with the visiting parent. However, if the parent shows up an hour late, then it is up to the discretion of the primary parent whether to let the child go. This comes down to what is reasonable. If the primary parent has other plans, he or she is not expected to wait all weekend for the visiting parent to show up. The court will consider what is reasonable, and what is in the best interest of the child when determining how to interpret these situations. The parents should use appropriate judgment and strive toward cooperation as much as possible.

This article is not intended to be legal advice and is not a substitute for legal representation by an attorney. You are encouraged to seek the advice of your own attorney to answer any specific legal questions you may have.