San Antonio Visitation Attorneys
Protecting You & Your Child During Possession Disputes
In Texas, visitation (called "possession" in the Texas Family Code) dictates how much time a parent or other caregiver can spend with a child.
For parents, dealing with possession disputes can be anxiety-inducing. No parent wants to receive a judgment from a court stating they need to spend less time with their child than they believe they deserve.
At The Law Office of Derek S. Ritchie, PLLC, our San Antonio possession attorneys can help you find the best path forward in your visitation case.
Understanding Possession Orders in Texas
In Texas, there are four types of possession orders:
- Standardized possession order;
- Modified possession orders;
- Possession orders for a child under 3;
- Supervised visitation orders.
Understanding these types of visitation orders can help you navigate your possession case more easily.
Standard Possession Orders
During visitation cases, courts often operate under the assumption that the noncustodial parent (whichever parent houses the less or spends a minority of time with them) will utilize a standard possession order.
Under a standard possession arrangement, assuming the parents live less than 100 miles apart, the noncustodial parent has the right to possession:
- On the first, third, and fifth weekend of each month;
- On Thursday evenings during the school year;
- On alternating holidays as the parents see fit;
- Over at least 30 days during summer break.
What a noncustodial parent does with those possession rights can differ. They may choose to house their child when they have possession or simply visit their child at the custodial parent's residence.
If the parents live more than 100 miles apart, the noncustodial parent can spend the same or a smaller number of weekends per month with their child and forego the mid-week visit in exchange for more days (42) with their child over summer break.
The noncustodial parent has the aforementioned right to possession regardless of whether the other custodial parent agrees to it. If the parents agree, the noncustodial parent may also receive more or less possession rights, bringing us to the next type of order.
Modified Possession Order
If a custodial and noncustodial parent agree that a standard possession order doesn't suit them, they can change the terms of the order. This makes it a modified order.
Some common plans parents make using modified orders include:
- Having the child spend alternating weeks with each parent;
- Having the child split weeks between the parents (spending two or three days per week with each parent in an alternating pattern) and then alternating weekends;
- Having the noncustodial parent visit during the day but be unable to take the child overnight;
- Giving the noncustodial parent managing conservator rights, so they can care for a child's estate.
Modified possession orders are a great way for parents in unique circumstances - such as one parent needing to travel consistently for work or being unable to house a child - to share possession rights effectively.
Possession Orders for Children Under Three
Children younger than three years old may have certain needs (such as consistent access to the mother) that children older than three do not possess.
As a result, courts often ask parents to establish a unique possession schedule if they have a child under three. When that child turns three, the parents may choose to use a standard, modified, or supervised possession order.
How your possession order works if you have a child under age three largely depends on the circumstances of your case and any special needs your child possesses.
Supervised Possession Orders
Generally, courts assume that it's beneficial for a child to spend time living with and around both parents. However, under certain circumstances, the court may decide one parent represents a danger to their child or is unfit to parent them.
Courts may consider a parent unfit if they:
- Have a record of domestic violence or abuse;
- Have a record of child abuse or neglect;
- Have a substance abuse problem;
- Don't have a safe living space for their child;
- Facilitate an unsafe environment (such as having an abusive partner);
- Are not physically or mentally healthy enough to adequately care for their child;
- Fail to meet the criteria for custodial rights in some other way.
If a court finds a parent unfit, they may give that parent supervised visitation rights. The details of a supervised possession order can differ on a case-by-case basis, but generally, the unfit parent will only be able to see their child under the eye of a third party such as the other parent or a professional from a child visitation agency.
Parents can request a standard, modified, supervised, or under three visitation order:
- As part of a divorce;
- After filing a Suit Affecting the Parent-Child Relationship (SAPCR) case with the court;
- As part of a paternity case; and
- As part of a family violence protective order case.
How Does Visitation Enforcement Work?
If either party engaged in a visitation order fails to comply with the order, the other party can ask a court to enforce the possession order.
Courts only enforce orders that have "clear, specific and unambiguous" guidelines "as to the duties and responsibilities of the alleged violator." This makes possession orders that use vague terminology such as "if both parties agree" more difficult to enforce, which is why having specific dates, times, and responsibilities established in the contents of a visitation order is so vital.
For a court to enforce your visitation order, you must first file a Motion to Enforce visitation. The motion include three parts:
- Details about the provisions of the possession order (i.e., exactly what part of the order the alleged violator refuses to comply with);
- Details about the alleged violator's behavior (i.e., exactly how they refused to comply with the order); and
- How you want to enforce the order (how you would like the court to penalize the alleged violator).
The person who files the motion is called the "movant" or the "petitioner." The other party is called the "respondent."
Importantly, the petitioner must provide evidence that backs up their claims against an alleged violator. Gaining evidence for these types of cases can be difficult, but a lawyer can help you navigate the process more easily. Examples of common evidence used during visitation enforcement cases includes:
- Testimony from a neutral third party witness;
- Documentation, such as written confirmation from the other party of their refusal to comply with the order;
- Evidence from other sources, such as a police report filed against the alleged violator as a result of their actions.
You can file a motion to enforce after the other party denies you visitation. A denial of visitation occurs when one party arrives on the correct date and time stated in the order to visit or pick up their child, and the other party either fails to show up or refuses to comply with the order.
What Are the Consequences of Violating a Visitation Order?
Courts often apply the following penalties to individuals who refuse to comply with the terms of visitation orders:
- Fines (as determined by the court to be appropriate given an individuals' actions and finances);
- Restitution payments to the petitioner;
- Restitution custody for the petitioner (i.e., make-up time with the child(ren);
- Probation; and
- Jail time (although courts often prefer to avoid sentencing a parent to jail if they can avoid it).
Before the court administers a judgment, both parties must attend a hearing and present their cases to the court. If the court sides with the petitioner, it will levy penalties against the violator.
At The Law Office of Derek S. Ritchie, PLLC, our San Antonio visitation enforcement lawyers can help you take action against a party that fails to comply with the terms of a visitation arrangement.