Written by attorney Thomas James Daley

Possession Orders for Children Under 3 in Texas

The Legislature amended the Texas Family Code to provide courts with guidance in crafting possession and access orders for children under three years of age. Previously, the Legislature instructed courts to apply the standard possession order absent clear and convinging evidence that another arrangement would be in the child's best interest AS LONG AS the child is three years or older. All the law said about younger children was that the possesion order should be appropriate to their age and circumstances.

That has changed with the 82nd Legislature. Effective September 1, 2011, the Legislature has provided the following guidance for children under 3 years of age. Note that the guidelines are not as cut and dry as the standard possession order, but at the very least they provide an outline for argument before the court.

The courts have been instructed by the legislature to take all relevant factors into consideration, including:

  1. the caregiving provided to the child before and during the current suit;
  2. the effect on the child that may result from separation from either party;
  3. the availability of the parties as caregivers and the willingness of the parties to personally care for the child;
  4. the physical, medical, behavioral, and developmental needs of the child;
  5. the physical, medical, emotional, economic, and social conditions of the parties;
  6. the impact and influence of individuals, other than the parties, who will be present during periods of possession;
  7. the presence of siblings during periods of possession;
  8. the child's need to develop healthy attachments to both parents;
  9. the child's need to continuity of routine;
  10. the location and proximity of the residences of the parties;
  11. the need for a temporary possession schedule that incrementally shifts to the schedule provided in the prospective order that goes into effect when the child turns 3;
  12. the ability of the parties to share in the responsibilities, rights, and duties of parenting; and
  13. any other evidence of the best interest of the child.

Item 13 is broad and preserves the court's historical discretion in determining the best interests of a child based on the specific circumstances involving that child.

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