When a divorce involves minor children, as many do, most of the issues that must be resolved and the decisions that must be made will impact those children in one way or another. Even the division of assets and debts will impact the children as it will likely change the financial picture for both parents post-divorce. One issue that directly and significantly impacts the children, however, is possession and access. In the State of Texas, the terms “custody” and “visitation” are not found within the law. Instead, the term “conservatorship” is used to refer to the relationship between a primary parent and the minor child, while the term “possession and access,” is associated with the concept of visitation. If you appear to be heading toward divorce, or have already started the process, you need to have a thorough understanding of possession and access. Because every situation is unique, it is imperative that you consult directly with an experienced attorney about specific questions or concerns you may have. In the meantime, a Fort Worth father’s rights lawyer explains some possession and access basics.
The Texas Family Code Section 153.001 et seq. governs conservatorship, possession and access within a divorce. Anytime a decision must be made that will impact a minor child, the decision must be made in accordance with the state’s policies. With regard to the parent-child relationship following a divorce, that section makes it very clear that the policy of the State of Texas is to:
assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
provide a safe, stable, and nonviolent environment for the child; and
encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
In addition, the court must also make decisions using the “best interest of the child” standard used by most courts. Put simply, this standard means that the child’s needs come before those of a parent. Finally, when making decisions regarding possession and access of a minor child the court must consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child.
At one time, most states divided custody into two types – physical and legal. Legal custody referred to a parent’s right to make important decisions regarding the minor child while physical custody referred to the parent with whom the child lived most of the time. The modern approach to post-divorce parenting, however, encourages the child to spend as much time with both parents as possible and the parents to continue to work together when important decisions involving the child must be made. Consequently, the State of Texas uses the term “possession and access” to refer to the time a child spends with either parent and refers to the parent as a “possessory conservator” while a “managing conservator” is a parent who has the legal right to make decisions on behalf of the child. Absent a very good reason to deny access, both parents should enjoy liberal access to a minor child post-divorce. The terms of that access will be spelled out in the Parenting Plan that must be submitted to, and approved by, the court before the divorce can be finalized.
One factor that will potentially cause a court to restrict, or even deny, a parent’s possession and access to a child is the presence of abuse, either sexual abuse of the child or family violence. The court shall consider the commission of family violence or sexual abuse in determining whether to deny, restrict, or limit the possession of a child by a parent. The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that:
there is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit; or
the parent engaged in conduct that constitutes an offense under Section 21.02, 22.011, 22.021, or 25.02, Penal Code, and that as a direct result of the conduct, the victim of the conduct became pregnant with the parent’s child.
Despite that general rule, a court can grant access to a parent even when there is a history of abuse if the court determines that:
awarding the parent access to the child would not endanger the child’s physical health or emotional welfare and would be in the best interest of the child; and
the court renders a possession order that is designed to protect the safety and well-being of the child and any other person who has been a victim of family violence committed by the parent.
If you have additional questions or concerns about possession and access in the State of Texas, contact the experienced Fort Worth fathers rights attorneys at The Law Office of Jon R. Boyd to schedule your appointment today.