VISITATION RIGHTS AND RESPONSIBILITIES
Both parents have equal rights and responsibilities toward their child. When the parents of a child do not live together, exercising those rights and responsibilities can become a problem. The child cannot live in two places at the same time. The parent with physical possession has the right to control the activities of the child unless there is a court order between the parents regarding the activities of the child. A court order may be called a Decree of Divorce, a Paternity Decree, or an Order In Suit Affecting The Parent-Child Relationship. Regardless of its name, the order will always identify the known parents, the child, and the rights and responsibilities of each parent.
Judges like parents to cooperate.
Judges like parents to be responsible adults and work together for the best interest of their child. Children benefit when their parents support each other’s decisions and provide clear guidelines and expectations to their children. Working together for the child’s best interest sometimes requires the parents to set aside their personal feelings. When parents cannot agree on an appropriate division of rights and responsibilities, the court will define the rights and responsibilities it deems in the best interest of the child. In some cases, the judge may appoint a guardian ad litem or attorney ad litem to investigate and report back to the court. This is a very costly process that gives the court control over parenting decisions rather than the parents making decisions affecting their family. In many cases, neither parent will be happy with a decision that the court is forced to make because the parents cannot reach an agreement. The court is guided by the Texas Family Code, which sets out “standard” rights and responsibilities of each parent. Depending on the facts and evidence of each case, the “standard” rights and responsibilities can be altered by the judge.
The difference between Conservators and Guardians
A person having possession rights to a child is called a “conservator” under Texas aw. This is similar to, but different than, a “guardian.” A “guardian” is someone appointed by a Texas Probate Court and is generally only needed if the child has money or property that needs protected. Texas law also provides for grandparent “access” rights, which are different than “possession” rights.
There are two kinds of “conservators.” There is a “managing conservator” and a “possessory conservator.” The court may appoint “Joint Managing Conservators” or a “Sole Managing Conservator” with as many “Possessory Conservators” as the court deems appropriate.
Joint Managing Conservatorship is presumed.
The first time a court must make a decision about conservatorship, the law presumes that both parents should be Joint Managing Conservators. The Judge can weigh a history of domestic violence, or whether the parent has had little prior contact or relationship with the child when considering restrictions on rights and possession.
Standard Rights and Duties of a Conservator
A parent appointed as conservator of a child has the following rights at all times:
1) to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
2) to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
3) of access to medical, dental, psychological and educational records of the child;
4) to consult with a physician, dentist, or psychologist of the child;
5) to consult with school officials concerning the child’s welfare and educational status, including school activities;
6) to attend school activities;
7) to be designated on the child’s records as a person to be notified in case of an emergency;
8) to consent to medical, dental and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
9) to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.
Standard rights and duties of a conservator during periods of possession:
1) the duty of care, control, protection, and reasonable discipline of the child;
2) the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
3) the right to consent for the child to medical and dental care not involving an invasive procedure; and
4) the right to direct the moral and religious training of the child.
The “standard” rights and duties of a Sole Managing Conservatorare:
1) the right to designate the primary residence of the child;
2) the right to consent to medical, dental and surgical treatment involving invasive procedures;
3) the right to consent to psychiatric and psychological treatment;
4) the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
5) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
6) the right to consent to marriage and to enlistment in the armed forces of the United States;
7) the right to make decisions concerning the child’s education;
8) the right to the services and earnings of the child; and
9) the right to act as an agent of the child in relation to the child’s estate of the child’s action is required by a state, the United States, or a foreign government.
Standard Possession Orders
One adult always has to be appointed the “Primary Managing Conservator.” This is the person who has primary custody of the child and determines where the child will live. If that is not you, then you are the “non-custodial parent.” Every non-custodial parent should have very specific rights to possession of the child written out in the court order. Texas law sets out specific possession rights that are presumed to be in the best interest of the child. The judge can change these possession rights if that is in the best interest of the child. The “Standard Possession Order” provides that the “non-custodial parent” will have possession of their child:
The non-custodial parent has the right to take possession of the child every first, third and fifth weekends of every month. The time and place for exchanging the child may vary.
If the parents live over 100 miles apart, the non-custodial parent has the right to elect either the first, third or fifth weekend or any one weekend during the month with adequate advance notice.
The non-custodial parent has the right to take possession of the child every Thursday. The time and place of exchange may vary. It could start when school is regularly dismissed or 6:00 p.m., and end at 8:00 p.m. or the next day when school resumes, unless that Friday happens to be a Friday that the “non-custodial” parent is entitled to possession.
The Christmas holiday season is divided into two parts. Part one is from the day school is dismissed until noon on December 26 and the part two is from noon on December 26 until school resumes after the Christmas vacation. One year the “primary” custodian will have the child for the first half and the next year they will have the child for the second half. The non-custodial parent with visitation rights will have possession of the child for the other half of the Christmas vacation.
The Thanksgiving holiday season is divided by odd and even years. One parent is entitled to possession for this vacation period in odd-numbered years and the other parent is entitled to possession in even-numbered years.
If the mother is not in possession of the child on Mother’s Day, she is entitled to pick up the child for a period of visitation over Mother’s Day.
If the father is not in possession of the child on Father’s Day, he is entitled to pick up the child for a period of visitation over Father’s Day.
The parent not in possession of the child on the child’s birthday is entitled to pick up the child for two hours between 6 p.m. and 8 p.m.
If the parents live within 100 miles of each other, the non-custodial parent is entitled to 30 days of possession during the summer months. If the parents live over 100 miles apart, the non-custodial parent is entitled to 42 days of possession during the summer months. The primary custodian will have some visitation rights during these periods.
Spring Break Possession
If the parents live within 100 miles of each other, the child’s spring break period is treated similar to the Thanksgiving break. One parent has the child in even-numbered years and the other has the child in odd-numbered years. If the parents live more than 100 miles apart, the non-custodial parent is entitled to possession of the child every spring break.
Disclaimer: The legal information provided in this article is the product of Legal Aid NorthWest Texas (LANWT). None of the legal information in this article is associated with or the product of the Office of the Attorney General of Texas or any of its employees.