There are benefits to using the standard possession schedule. The standard possession schedule offers parents a certain amount of predictability that may reduce the need for future litigation. However, there are situations that require a customized schedule, or necessitate a customized schedule when the Texas Standard Possession Schedule is unworkable.
Child Custody, Family Violence and deviating from the standard possession schedule in Round Rock, and Williamson County Texas
The Texas Family Code has many different provisions relating to deviations from the Texas Standard Possession Order. The overriding policy consideration that controls the courts authority to render an order, is as follows:
An argument by a lawyer, who is trying to motivate the court to deviate from the Texas Standard Possession Order, will have to emphasize the best interest of child as a primary consideration. This said, lawyers have to overcome a “rebuttable presumption” that the Standard Possession order is in the best interest of the child. The judge has a large amount of discretion to make this decision. Generally, the only way to reverse a judge’s decision on best interest of child is to show that the judge’s decision was arbitrary or unreasonable.“The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship, and possession of, and access to the child.”
Texas’s public policy is to assure that children have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child. The Texas Family Code puts forth that the Standard Possession Order is intended to guide the court in ordering the terms and conditions for possession, access, and visitation of children by parents who are either labeled as a possessory conservator or as the minimum possession, access, and visitation for a joint managing conservator.
Specifically, the State of Texas’s public policy is to encourage frequent contact between a child and each parent for periods of possession, access, and visitation that optimize the development of a close and continuing relationship between each of the child’s parents. The standard possession order is intended to relate to children that are 3 years of age or older. The courts also prefer to keep all children in a family together.
Any time I argue that the Standard Possession Order is not in the best interest of the child, the key is to articulate to the court exactly and specifically how and why the standard possession order is not in the best interest of the child. As a lawyer arguing this point, I have to prove to the court that the standard possession order is inappropriate and that a basis exists justifying a deviation from the guidelines set forth above and stated in the Texas Family Code.
When arguing to the court that a there is a basis to deviate from the public policy, ensuring frequent and continuing contact between children and parents, it is important to rely on another public policy that a possession, access, and visitation order provide a safe, stable, and nonviolent environment for the children. Specifically, the court must include provisions in the child custody order that minimize disruption to the children’s education, daily routine, and friendships.
When handling a case in which domestic violence has been an issue, Child Custody lawyers relying on this public policy, specifically want to focus on the words “safe, stable, and nonviolent environment,” in their argument that a deviation is in the best interest of the child. It may even be more helpful when dealing with children under the age of 3, since the standard possession order does not apply to them.
The Texas Family Code, specifically states that “the court may not appoint joint managing conservators if there is credible evidence of a history or pattern of past or present child neglect, or physical or sexual abuse, by one parent directed against the other parent, a spouse, or a child. The court is also required to consider the commission of family violence in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator.
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, unless the court:
- Finds 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
- 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.
Once a lawyer has proven that a basis exists to limit or deny possession, access, or visitation of a child by one of the parents the lawyer still needs to illustrate to the court a link between the abuse or neglect and the limitation on visitation. The point being is that if the father assaulted the mother a year prior to the filing of the child custody lawsuit, and the children were not in the house at the time of the assault, then the basis for the limitation may not be present.
Which parent will get custody of your child is not a predetermined decision. Merely being a parent does not mean you can get custody of your child. You need an experienced, knowledgeable child custody lawyer to help you achieve your goals.
It is a common misunderstanding that courts will order parents to have joint custody. Joint custody refers to rights and duties specifically, in Texas, called joint managing conservatorship. While the designation of joint managing conservatorship creates certain presumptions there are many situations where it is not practical to have joint custody even if no family violence is present.
Joint custody or joint managing conservatorship requires the parents to jointly agree on all issues including issues relating to the health, education, and welfare of the children. If the parents are not able to work together to make decisions regarding their child, joint custody may not be in the best interest of the child. Generally, joint custody is an option when the parents have an amicable relationship and can communicate or co-parent in an effective manner.
If the parents are not on friendly enough terms, chances are that the joint decision-making required in “joint custody” will result in more disagreements and conflict. In that case, the court will select one parent to be the sole decision maker, who will have what is referred to as “legal custody” of the child. However, there is a presumption in Texas that joint managing conservatorship ship is in the best interest of the child, therefore in order to overcome this presumption, a parent will have to show by a preponderance of the evidence that joint managing conservatorship is not in the best interest of the child.
Emergency Temporary Restraining Order
The following is a list of situations where an emergency temporary restraining order may be necessary: Do not hesitate to contact Clifford Swayze immediately if any of the following circumstances are present in your child custody case:
- If you believe the other parent is going to relocate with your child without your permission
- If you notice signs of abuse or neglect by the other parent
- If there is an immediate danger to the child’s physical health or emotional development.
Consult With an Attorney
If you have questions about child custody in Williamson County, call the Round Rock Law Office of Clifford Swayze at 512-920-5080. Clifford Swayze is committed to his clients and advocating for their well-being. In addition, to helping clients with divorce and family law matters, Clifford Swayze is an experienced and skilled child custody lawyer practicing in the following communities in and around Round Rock, and Williamson County, Texas:
Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor, Killeen, Temple, Coppers Cove and Austin.