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Visitation Rights

Posted by attorney John Zinda

Visitation is described as “possession and access." The person who gets visitation is the one who does not have primary access of the child. When it comes to visitation, things can quickly take a nightmarish turn.

One woman shared that throughout her divorce the police had to get involved, her spouse attempted to kidnap their children and a restraining order was issued. Now, today, her ex-husband continues to cause turmoil and conflict. Recently, after a spring break drop off, the woman and her husband began arguing about an unresolved financial issue. The man yelled, “I’ll just keep the kids until you give me a check," as he squealed out of the parking lot and his kids cried in the backseat.

In another alarming story, a woman expressed her frustrations about her ex’s girlfriend’s involvement with her son. The woman shared that her ex-husband’s girlfriend applied for a job at the same daycare her son goes to. The girlfriend alleges that the woman’s son is her stepson (even though he is not) and frequently sends the woman clippings from Parenting magazine. The girlfriend also offered to watch the boy as an alternative to him being sent to daycare each day.

Let’s be honest, sending your kids to spend time with your ex each week or every other week or whatnot is a scary and often disconcerting experience. How do visitation rights work in Texas? In Texas, both parents have equal rights and responsibilities toward their child. The parent with primary custody has the right to control the activities of the child, however, unless there is a court order stating otherwise. When parents cannot agree on a division of rights and responsibilities, the court will make decisions based upon what is in the best interests of the child.

When visitation becomes an especially sticky issue, the judge can appoint a guardian ad litem or attorney ad litem to investigate the situation/dispute. In this instance, a neutral attorney will interview family members and friends in order to determine what they think is in the best interest of the children. A guardian ad litem is often installed when the court does not think that the parents are capable of acting in the best interests of the children. The fees for an ad litem can vary from $250 to $5,000 and the side involved in the lawsuit will be responsible for paying.

As you can see, it is better emotionally and financially for parents to strive to come to an agreement without forcing the court to get involved. When the court makes the decisions, this frequently leaves both parents upset, disappointed and unhappy with the outcome. When the court is forced to make these sorts of decisions, it does so based off the Texas Family Code, which sets forth the standard rights and responsibilities of each parent.

Visitation can be a difficult matter to agree upon, as you have to split down the middle weekends, weekdays, holidays, overnights, birthdays, summers, and spring breaks. When a child is 12 years or older he/she can sign a statement choosing the parent with whom the child primarily wants to live with. This statement is considered persuasive evidence by the judge. Nonetheless, the child’s choice is subject to approval by the court.

The types of visitation in Texas include standard possession order, modified possession order, modified under three possession order and supervised visitation order. The courts often do not allow visitation if there is a history of family violence or a risk to the child’s physical or emotional welfare. If you need help ironing out visitation decisions, contact a family lawyer today!

Additional resources provided by the author

Zinda & Davis, PLLC is a family law firm based in Austin, Texas. The firm helps couples with a variety of divorce issues from child custody to child support to domestic violence to mediation to property division to spousal support. The firm is BBB accredited and its lead attorney was named a Texas Super Lawyers® Rising Star℠.

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