Structuring possession and access orders for children in a divorce or separation is important and often highly contentious as everyone wants to know who get to keep the child(ren). In Texas there are two possession and access orders, a standard possession order or modified possession order that outlines parents’ child visitation rights based on conservatorship. Before determining possession and access, child custody or “conservatorship” must be determined.
Under Texas Law, conservatorship also known as child custody must be determined. Child custody may be arranged in different ways including: (1) Joint Custody – the most common, where both parents have custody over the children, (2) Sole Custody – when one parent has primary custody over the child, (3) Legal Custody – the parent who is able to make decisions on education, medical care, religion, and (4) Physical Custody – the parent that owns the residence where the child lives. Courts may award both parents with equal legal and physical custody. Typically, parents have joint custody where one parent is the primary conservatory or custodial parent, with rights to determine child’s physical residence and the other parent is the non-custodial parent. In evaluating conservatorship, the court will look at the determining factor, what is in the child’s best interest. After conservatorship determined, possession and access must be finalized.
Texas has two possession and access orders: the standard possession and access order or modified possession and access order. The standard order has a structured visitation schedule, prescribed by law as follows:
• visitation the 1st, 3rd, and 5th weekends every month beginning at 6PM every Friday and ending at 6 PM every Sunday
• Standard Thursday night visitation from 6-8PM
• Rotating holidays – Spring Break, Christmas, Birthdays
• Summer and Winter Break visitation
• Manner of how and where exchanges of the child take place
On the other hand, a modified possession order can be structured where each parent has 50/50 visitation and includes any deviation from the standard possession order. Courts may deviate from the standard order if there is evidence showing the deviation is in the child’s best interest and will look at family violence considerations, if the child is under 3 and there is little or no prior contact with the child. Additionally, external factors or special needs of the child may create exceptional circumstances to deviate from the general standard possession order. Further, both parents can agree to a customized schedule or parenting plan without having the court decide. However, this agreement must be ordered by the court to be enforceable.
Conservatorship possession and access battles are very contentious and difficult on everyone involved. It is highly recommended to get a qualified attorney to navigate and promote a well thought out parenting plan regarding conservatorship and more. In this way, a Court does not need to step in and order what neither parent most likely may not prefer. It is imperative to talk to your attorney and discuss all facts of your case to help you in the best manner possible. In this way, you are able to control the outcome of your case so that you are satisfied and the best interest of your child(ren) are also satisfied. This fosters a great path for the entire family to easily move forward, reduces stress levels, and helps your ability to make future holiday family plans.
About the Author: Mala Sharma has been practicing family law and personal injury with her family at the Law Offices of Sharma & Associates, founded in 1997 with over 42 years of combined experience. Mala is a Board of Advocates for the Houston Trial Lawyers Association, Vice-Chair of the American Bar Association GP Solo YLD, member of the Houston Bar Association, President Emeritus of the Houston Northwest Bar Association, and prior board member of the South Asian Bar Association.
This material is available for informational purposes only and not for the purpose of providing legal advice. If you require advice on any particular legal question, you may contact Sharma & Associates at 281-893-8644 or by email at firstname.lastname@example.org to schedule a free consultation to discuss your case.