Visitation orders, issues and pitfalls in Texas family law

Posted By Scroggins Family Law || 21-Apr-2016

When in a divorce or family law action involving children in Texas, the court determines which parent will be the primary residential parent and how much visitation time the other parent will be awarded. It may be in the best interests of the parents to agree on visitation times and schedules instead of asking the judge to make that decision which can involve hearing and trial with evidence and testimony that might not be a pleasing to either party. The best-intended agreements, in practice however, do not work. There are a variety of challenges and legal issues that can arise when co-parenting. Knowing the consequences of visitation issues may help a parent reconsider the approach to impasses in co-parenting.

Establishing temporary orders and agreements for visitation

Shortly after a divorce petition, or court matter affecting a parent-child relationship, is filed with the district clerk, the court will hold a  temporary orders hearing to decide initial and temporary to permanent arrangements, including the parent with whom the child shall primarily reside. Again, this can be done by agreement and included in the temporary orders. In most cases, the best interests of a child will involve what is called a standard possession order ("SPO"), in which the non-custodial parent will have visitation with child every first, third and fifth Friday at 6:00 p.m. to Sunday at 6:00 p.m. and on every Thursday evening from 6:00 p.m. to 8:00 p.m. Parents divide holiday time in a SPO, which also provides for 30 days or more visitation with the child during the summer. [i]

The court's options for visitation also include a modified possession order, where the parents customize the visitation plan, often how it best works with the schedules of the child and parents. When there is a child under three years of age, a modified under three possession order can be used to complement the needs and structure of a very young child. If there is a safety concern or the court finds an element of risk, supervised visitation can be ordered on a temporary or permanent basis, most often in connection with allegations or findings of drug or alcohol abuse as well as domestic violence issues. The court can determine who will supervise the visitation and the logistics of visitation with the child.

Co-parenting and following or ignoring visitation orders

After a divorce or family law case, most people go on their way and assume their routine life. For many, co-parenting works well and both parents stick to the visitation schedule and are mindful of the child's response to co-parenting; whether things are going well or are rocky. A few missed or rescheduled pick up or drop off meetings could lead to trouble. The visiting parent could be late dropping off the child and agree to drop off earlier at the next scheduled visit. When the "I owe yous" run out there can be trouble.

In some families, botched pick and drop off schedules are minor when compared to more serious violations of court-ordered periods of visitation. Unfortunately, some parents decide to engage in self-help and punish the other parent by either withholding visitation entirely, refusing to return a child from visitation, and even withholding child support or spousal maintenance. Visitation issues also include the failure of a visiting parent to follow the orders or instructions of the primary parent with the dispensing of medications, diet restrictions, or rules for play and socializing with others.

Enforcing visitation through attorneys out of court, or back in family court

When one parent makes the choice not to obey the court ordered visitation schedule, the other may ask the court take action to enforce the visitation order. In some instances, the parent complaining about visitation violations will contact their attorney and request a phone call or strongly worded letter to the other parent or their lawyer, if represented, and the problem can be resolved out of court. If necessary the attorney for an aggrieved parent can file a motion to compel the other parent to obey the visitation order or be held in contempt of court, leading to possible fines and jail time.

Parents seeking to enforce a visitation order often keep a record of failed visitation attempts and the conditions and circumstances giving rise to the breakdown in co-parenting. When allegations are made about a parent knowingly and willingly ignoring a visitation order, visitation could be limited or terminated if the judge finds the visitation problems have an adverse affect on a child, contrary to their best interests.

Modifying visitation when the current order no longer works

When the visitation order is not being followed, or cannot be properly followed due to a substantial change in the co-parents' circumstances, the court can modify the temporary or final orders with a new visitation arrangement, sometimes ordering supervised visits. [ii] In enforcing and modifying visitation, it is important to note that the court cannot order a parent to exercise their visitation rights against their will. Refusal to use visitation time can become an issue in later court hearings, where the credibility of a parent may be weighed by the court.

Dallas and Collin County Board Certified [iii] divorce and family law attorney, Mark Scroggins, along with their team at Scroggins Family Lawadvise and represent North Texas families with all their legal issues, including custody and visitation matters.

At Scroggins Family Law, our Dallas and Collin County divorce attorneys have more than over 24 years of collective experience with family law cases. When you retain our firm, you can trust that your case is in the hands of a highly skilled, dedicated professional. we understand the unique challenges of a high value divorce case, and more importantly, have the knowledge and experience you need on your side. Call us today to learn more about Texas divorce and family law: (214) 469-3100.