Abogado Aly: Standard Possession Orders for Texas family law cases

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

In the event that you are served with papers ordering you to appear in court for a case related to your child, you probably would have some questions that you would like answered. To begin with, why do you have to go to court in the first place? If you are paying some amount of child support to your child’s mother and see your child with the regularity you may want to just continue doing what you’ve been doing and not have to worry about going to court.

Although taking off work and going to court may be a hassle (and it is), the end result of your going will be a good thing for you, your child and the child’s mom. A court date to establish orders in relation to you and your child will result with you being awarded visitation time as well as rights and duties that pertain to raising your child. It is only then that you formally have rights and duties to that child if you are not married to the child’s mom and have not previously acknowledged paternity.

Step one of the process, if you are not yet the legal father of the child, is to be named as the child’s legal parent. With that comes the ability for you to step in and participate in a negotiation regarding custody, visitation, possession, and access. Unless circumstances require a different conclusion, you and your child’s mother will be named as joint managing conservators of your child. This allows you to share in the rights and duties associated with raising your son or daughter.

What sort of visitation will you be ordered in a Texas family law cases?

The presumption is that you will be ordered visitation that is included within a Standard Possession Order. This order allows you to be able to spend time with your child on a fairly substantial basis throughout the year.

If you live within 100 miles of your child you will have visitation with him or her on the first, third and fifth weekends of each month. You will also have a visitation period each Thursday during the week where you can take your child to dinner and then take him or her back to their other parent’s home. Holidays like Thanksgiving and Christmas will alternate year by year. For example, if you get Thanksgiving this year, your child’s other parent will have Thanksgiving next year. Finally, you are entitled to an extended period of possession during the summertime that lasts for 30 days.

If you do not live within 100 miles of your child, then your periods of possession will look slightly different. For instance, your weekend schedule may be the first, third and fifth weekends of each month, or it may be reduced to as little as one weekend per month. It will all depend on the distance put between you and your child, the frequency with which you can travel and other factors relevant to your case.

Because of the distance between you and your child, there is no mid-week visit on Thursdays when you live more than 100 miles apart. The alternating of holidays would still occur, and you would be provided with an even longer period of extended summer possession. Instead of 30 days of possession, you would have 42.

Changes to the Standard Possession Order may occur based on specific circumstances

If your child under the age of three then it is likely that that the visitation provisions that we just went over will need to be altered slightly to take into consideration your family’s dynamics. For instance, because your infant relies on their mother for food in many cases, he or she must literally be within arm’s reach at nearly all time. As a result, visitation overnights may not be possible for a few years until your child is older. Of course, if your child is comfortable with visiting overnights with you and he or she is bottle fed these limitations may not apply to your case.

What is in your child’s best interests?

Everything that we have discussed today and everything that a court would consider in your family law case are based on what is in that child’s best interests. This is a difficult question to answer because there are a lot of factors that exist for your child and your family that may not exist for other kids and their families. As a result, judges have a tough assignment to make interpretations of your individual circumstances.

However, the Texas Family Code does contain helpful information that can guide your judge in making a determination as to what is in the best interests of your child. What your child wants to see happen is important to a judge, especially if your child is over the age of 12. A motion can be filed with the judge to have him or she confer with your child in their office to determine what your child’s preferences are.

Before I go any further, I want to note that what your teenage child wants is not the be all, end all of your case. Many parents tell me at the beginning of their child custody case that theirs will be a quick and easy case because they know that their child wants to live with him or her. In their mind, all we have to do is file a motion to have the judge talk to their child and the case will quickly be over with. This is not how things actually work, however.

In the real world of family law cases, a judge can speak to your child if a motion is filed. If your child is over the age of 12 the judge must honor that request and speak to your child about their living preference. Any child under the age of 12 may also speak to the judge but in that situation, the judge will get to decide whether or not to speak to a child so young about this subject. All of the other issues that we are going to discuss right now are just as important if not more important as your child’s preference.

The emotional, physical and mental needs of your child now and in the future will be considered by the judge as well. The safety of your child is also important and so if any physical or emotional dangers exist in your home or that of your child’s other parent it is likely that primary conservatorship would be given to the parent whose home life is more conducive to raising a child in a safe environment.

On a practical level, the parenting abilities of you and your child’s other parents will be assessed. You may be the most competent dad in the world, but if you have never really made any time to see your child other than in the weeks prior to your child custody case, it is likely that your parenting abilities would rate rather low with the judge. The reason for this is simple: you have never taken the time to attempt to parent your child.

What are your plans and goals for your child?

A parent with a roadmap of where he or she wants their child to go and how he or she is going to help their child attain those goals is a desirable quality for a parent to possess in the eyes of a judge. Part of those goals is being able to provide your child with a stable home life that allows him or her to reach their potential. If you are moving every six months because you cannot pay your rent, or have significant others causing problems for your children then you will have trouble arguing that your home life provides the best possible environment for raising your kids.

What happens with child support if you do not attend your court hearing?

If you do not attend your court hearing when child support is being determined, you run the risk of having a child support award determined for you. If that doesn’t seem fair, read this: a court may order you to pay child support based off of minimum wages being earned 40 hours a week. That could be what a court determines even if you do not work. That is a tough thing to digest, so if you have the information you want to share with the judge regarding either of these subjects you need to make sure you appear for every hearing that occurs.

What happens if your child comes to live with you? Do you still need to pay child support?

In some situations, your child’s other parent will need you to take care of your child for an extended period of time for any various reason. Maybe he or she has to go care for an ill relative. Maybe he or she has to spend some time in jail. There are a number of reasons why your child’s other parent could approach you regarding the full-time care of your child. If this happens to you, it is reasonable to wonder whether or not you have to pay child support even if you have become the full-time caretaker for your child.

Even if you start to care for your child on a full-time basis and he comes to live with you primarily, you are still responsible for paying child support under your court order. As such, I could not recommend that you stop paying child support. Your child support orders can be modified (changed) and so this responsibility will not be ongoing if modification is requested and granted by your court. However, until that happens you need to pay child support on time and in full.

Can you pay more or less child support than what is laid out in the Texas Family Code?

The Texas Family Code contains the guideline amounts of support that people are expected to pay towards the upbringing of their children. However, it is may happen that your child either needs to receive a higher than guidelines level of support or an amount of money that is below the child support guidelines.

You can ask a judge to order you to be able to pay a non-guidelines level of support for any reason that you would like. It must be shown that the modified amount of child support is in the best interests of your child. The age of your child, their specific needs, their health and the split in custody between yourself and your child’s other parent are the other main factors that I believe a court will look to when assessing a child support amount for you to pay.

Keep in mind that you and your child’s other parent can agree to change the amount of child support that is paid- either upward or downward. If you all can negotiate and agree on a new amount, all you have to do is draft a new set of final orders that reflect that change. A judge can review those new orders and sign off on it as long as it is determined that the change in child support is in the best interests of your child.

Abogado Aly

Saturday, January 25, 2020

Standard Possession Orders for Texas family law cases