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Access to and Possession of Children – New Issues in Shared Parenting Time

Family law practitioners, as well as clients, are exploring new ways to achieve more equitable parenting time between parties and their children.

The first codification of laws relating to access to and possession of children was enacted in 1963, prior to the inception of the Texas Family Code. The predecessor to the Standard Possession Order of today contained just two sentences, “The court shall by order permit visitation privileges at reasonable times and places by the parent not having custody of the child or children if the parent should be considered fit for visitation, and if the court considers such visitation privileges to be in the best interest of the child or children. The interest of the child or children shall be the paramount consideration in the determination of the extent of the visitation privileges, if any.” House Bill 22, 58th Reg. Session, 1963

Imagine trying to enforce visitation under that provision!

No parent wants to be relegated to “second” place.

Most separated parents are familiar with the Standard Possession Order which is contained in the Texas Family Code, although they may not know it as such. Because divorced and unmarried parents are so pervasive in our culture, it is commonplace for single parents to have access to their children on either an every-other weekend basis, or the first, third and fifth weekend of the month-type schedule. However, these schedules are based upon a system where one parent is known as the “primary joint managing conservator” and the other parent is somehow assigned the role of “other parent” or “non-custodial parent”. The “primary” parent nomenclature is a misnomer at the start. The term is derived from the most important right and duty of parenthood, the right to determine the child’s primary residence, and therefore, by default, to choose the school the child will attend in most cases. But it is easy to see how the term can affect the dynamics of the family, however unintentionally. No parent wants to be relegated to “second” place. Hopefully, future legislative changes will update these rigid titles, thereby creating more equity between separated parents.

A phrase which Is consistently glossed over or buried within the many pages of a divorce decree of order in suit affecting the parent-child relationship, is that the possession provisions are enforced “in the absence of mutual agreement” between the parties. Fit parents, acting in the best interests of their children, can and do agree upon possession of their children between them, with no need for court intervention. Unfortunately, when an agreement is breached, parents have no choice but to look for the law to intervene and resolve their disputes.

The trend in family law courts is to foster agreements between parents to create access and possession schedules to fit their unique needs. Tarrant County’s Access Facilitation Program and the use of private parenting facilitators are enabling parents to sit down with their individual schedules and reach more flexible periods of share parenting time with their children.

Shared parenting schedules are diverse as families themselves. While a week-on/week-off schedule may work well for older children and teenagers, a 2-2-3 schedule is more desirable for families with younger children, who need to see each parent more frequently. To customize a parenting schedule to fit your family’s needs is the optimal solution.

If you are in the midst of a divorce or a contested suit affecting your children, try thinking outside of the box, together with your lawyer. Your family is unique and different from any other. Your children’s needs will change based upon their age and development, and it behooves you to take this into account when creating a schedule for you and your former spouse or partner to spend time with them. Plan for vacations, holidays that you may celebrate with your family and your children’s activities, so as to share as much as you possibly can with them. Your children love both of you equally, so try to work in a framework to support that love even though your family is no longer one unit.