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Possession and Access

This month I want to talk about Possession and Access, what we more frequently call visitation. The law concerning Possession and Access is found in Texas Family Code Chapter 153 beginning at section 301. Much like child support, the “Standard Possession Schedule” is a GUIDELINE. It is the presumed minimum amount of visitation in the “best interest of the child.” Just like child support the court can order more or less IF there is evidence before court indicating more or less that the Standard Possession Schedule is in the best interest of the child.

Another thing that parties often overlook is what I believe to be the most important phrase of the entire Standard Possession Schedule (section 153.311) …The parties may have possession of the child(ren) at times mutually agreed to in advance by the parties and, in the absence of mutual agreement, shall have possession of the child under the terms set out in the standard possession order. As a drafting tip in order to make it clearer and to emphasize the ability of the parties to vary when they agree to do so.

“THE PARTIES MAY HAVE POSSESSION OF THE CHILD(REN) AT ALL TIMES MUTUALLY AGREED TO IN ADVANCE BY THE PARTIES.

“IN THE ABSENCE OF MUTUAL AGREEMENT THE FOLLOWING APPLIES:” and then put in the Standard Possession Schedule or a Modified Possession Schedule depending on what the parties want or the judge orders.

Another overlooked provision is Section 153.317 Alternative Beginning and Ending Possession Times: allowing the “visiting parent” to pick up and drop off the child from school. This is a great idea to reduce the conflict between parents as they will rarely see each other. It also allows the child to have more time with the visiting parent. Lastly, and I think this is the most overlooked thing, is that Section 153.317 makes clear that this is the matter of ELECTION BY THE CONSERVATOR. If you represent the visiting parent FILE YOUR ELECTION AT THE TIME OF TRIAL. I think this is further proof that it is a matter of election NOT something to necessarily ask a court to allow is 153.316 (2). It is the visiting parent’s choice.

In summary, I believe visitation is much like child support. The Texas Family Code Chapter 153 lays out guidelines for visitation, not what should be applied in all instances. Customize in each instance to fit the needs of the parties and in the best interest of the child.

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