Visitation – Parenting is rife with challenges, and most parents of very young children report that the overwhelming needs of children under the age of three can be completely exhausting. Similarly, Texas law represents a belief that children under the age of three have categorically different needs. The law grew out of an older doctrine called the “Tender Years Doctrine,” which stated that very young children needed to be with their mothers. Texas law no longer favors mothers, but it still limits the amount of time young children spend bouncing between two parents.
The Child’s Best Interests
Texas makes child custody determinations (Conservatorship , Possession and Access) based on the child’s best interests. Under the best interest of the child standard either mothers or fathers may be primary custodians (exclusive right to designate primary residence), even of very young children. However, as mothers are more frequently a child’s primary caretaker when the children are less than three years of age, mothers are more likely to be awarded primary custodians of these children. Thus the practical effect of Texas laws governing possession of children under three is that mothers tend to have more time with very young children.
Modified Possession of Children under the age of three.
After the child’s conservators have been appointed, the court must allocate periods of possession and access to the children. Under the law, the time parents spend with their children is technically called possession. Texas law offers a standard possession order for noncustodial parents. This order means that most noncustodial parents have a specific, reliable visitation schedule that includes time with their children during the week, every other weekend (1st, 3rd, and 5th), 30 days of time together during summer break, and alternating specific holidays.
When children are under the age of three at the time of a divorce or separation, though, courts may issue a modified possession order instead . To determine whether it should deviate from the standard possession order when the child is less than three years of age, the Court analyzes the facts of the case before it to a series of factors set forth in the Texas Family Code.
The factors are as follows:
(a) The caregiving provided to the child before and during the current suit;
(b) The effect of the child that may result from separation from either party;
(c) The parties’ availability and willingness to personally care for the child;
(d) The child’s physical, medical, behavioral, and developmental needs;
(e) The parties’ physical, medical, emotional, economic, and social conditions;
(f) The impact and influence of individuals other that the parties who will be present during periods of possession;
(g) The presence of siblings during the periods of possession;
(h) The child’s need to develop health attachments to both parents;
(i) The child’s need for continuity of routine;
(j) The location and proximity of the parties residence;
(k) The need for a temporary possession schedule that incrementally shifts to the schedule provided in the prospective order based upon (1) the child’s age or (2) a party’s minimal or inconsistent contact with the child;
(l) The parties ability to share in the responsibilities, rights and duties of parenting; and
(m) Any other evidence of the child’s best interest.
The modified possession order generally extends shorter visitation periods to noncustodial parents. Over time, the visits become longer so that the child can become accustomed to his or her noncustodial parent. For example, if a mother has primary custody and a father has visitation, the father of a 6-month-old might see the child for two hours a day every other day. Over time, the length of these visits might increase while the frequency might decrease. The ultimate goal of a modified possession order is for the noncustodial parent to work up to a standard possession order.
The determination of who will be the primary care giver for children and what possession and access the noncustodial parent will receive is a complex factual determination and no two cases are ever alike. If you have questions concerning the impact of that a divorce may have on the time you spend with your children or you legal ability to make decision concerning them, please contact me for a free initial consultation so we can discuss your particular circumstances in detail.
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1 Conservatorship is the legal concept that deals with the legal rights and duties of a parent in relation to their child or children as opposed to the legal right to have possession or access to their children. In short, a conservator is the person who has the legal right to make decisions for a child or children.
2 Restricting periods of possession can also occur as a result of the child’s developmental needs, drug and/or alcohol abuse, family violence, risk of international child abduction, false reports of child abuse, mental health, parental alienation, or any other relevant factor.
