In Texas, partners in a marriage have equal claims to everything acquired after their wedding. This includes possessions, property, and debt, but for parents, it also encompasses children.
While children aren’t assets—and certainly can’t be owned—as parents, divorcing spouses do have an equal claim to custodial rights over their child. This includes visitation. Often, parents are able to come up with a reasonable division of time on their own. If not, though, it might be necessary to elicit outside aid to help you negotiate an agreement or prepare for trial.
Here’s how visitation rights work in Texas, and what the team at Neal Ashmore can do to help you facilitate a parenting plan with your spouse.
Visitation Rights: The Basics
Out of all rights, precious few are viewed in higher regard by Texas courts than those held by parents. Among these parental rights, is the right to possession and access—or, in other words, the right to have physical face time with your child.
As a parent (whether biological, or adopted), these powers are inherent to your position. This means that your right to have a relationship with your child isn’t going anywhere, even if you get divorced. However, that doesn’t mean things won’t work a little differently than your pre-divorce parenting days.
When you and your spouse aren’t living under the same roof anymore, suddenly seeing your child isn’t as simple as going into the next room. Instead, it takes a coordinated effort on the part of both parents. And, unlike legal custody (which does not require a child’s physical presence in order to be held equally), a child can’t actually be split down the middle (sorry, Solomon).
Hence a visitation schedule is necessary in order to ensure both parent’s rights are being upheld.
Common Visitation Schedules
The exact breakdown of how parents will share their child’s time differs between cases. When trying to decide what will work best for your family, it might be helpful to use a standardized schedule as a starting point.
Some of Texas’s standardized schedules include:
- The 4-3 schedule (three days with one parent, four days with the other, then repeat);
- The 2-2-5-5 schedule (two days with each parent, then five days with each parent, then repeat); and,
- A modified version of either, wherein every other weekend is extended with whichever parent has visitation that week.
Whatever schedule you come up with, make sure that you compensate for holidays and summer. Special considerations may also need to be addressed for couples who live more than 100 miles apart.
Once you and your spouse have agreed on the particulars, the details of your visitation schedule will be drafted into a written document called a parenting plan.
A parenting plan is an agreement between you and your spouse that outlines things like custody, visitation, and child support. This document will later be incorporated into your final divorce order, making the terms enforceable.
Parents who want the most flexibility in drafting this plan should try to reach an agreement on their own. This can be done simply with the help of your respective attorneys, or through mediation, an out of court negotiation process that helps couples resolve divorce issues without judicial interference.
No one knows your child and family dynamics better than you, which is why Neal Ashmore always encourages its clients to attempt resolution without going to court. However, if this isn’t possible, one of our skilled attorneys can help you prepare for trial.
Visitation Rights: Court Intervention
If you and your spouse are unable to determine visitation rights outside of court, the only other option is to prepare for divorce litigation. Here, a judge will determine custody and visitation on your behalf.
Joint Versus Sole Custody
When deciding how this physical time will be shared, judges have the option of giving visitation rights to both parents in joint custody, or to one, as a sole custodian.
In Texas, courts have long held that a child’s best interest is served by having a relationship with both parents whenever possible. To this end, it’s rare for judges to revoke parental rights, altogether, and most will award joint custody in some form—even if it’s only supervised visitation. That being said, this doesn’t guarantee that the split will be fifty-fifty. In fact, it most likely won’t be.
Instead, it’s far more common for one parent to be made the primary residence parent (or, “custodial parent”), and for the other (the “secondary parent,” or “non-custodial parent”) to be awarded ample visitation.
How Custodial Parents are Chosen
Historically, mothers were most often made the custodial parent. Today, however, this role is not a
given—especially in light of same sex marriage, and disappearing gender norms. In fact, the Texas Family Code specifically prohibits courts from making custody and visitation decisions based on either marital status or the sex of either partner.
Instead, judges determine living arrangements and visitation according to the best interest of the child—nothing more. Some of the factors influencing this outcome could include:
- The relationship the child has with each parent;
- The emotional and physical needs of the child;
- Each parent’s ability to meet these needs;
- The health and finances of both parents;
- Any history of abuse or neglect; and even,
- The child’s age and preference (if over twelve).
Courts will also consider which parent seems most likely to help foster a relationship between their child and their ex.
Keep in mind that your visitation schedule—whether court ordered, or self-determined—will also include residency restrictions. These restrictions outline where a custodial parent is allowed to live, in order to make it easier for both parents to access their child.
Typically, the boundaries include the couple’s current county, and any that border it. If there are circumstances in your case that warrant extending these boundaries out further, talk to your Neal Ashmore attorney about what options might be available to you.
Visitation Rights: Enforcement
Whether you drafted your own agreement or needed the help of the court, parenting plans (and their associated visitation schedules) are enforceable. Once signed into order, they carry the full weight of the law—regardless of your feelings about the arrangement.
Parents who fail to uphold the terms could face fines, jail time, and might even put their own visitation rights in jeopardy. This sentiment holds true, even if your spouse has failed to pay child support. As the saying goes, two wrongs don’t make a right, and judges won’t look kindly on you for thwarting your spouse’s visitation rights.
If your spouse is not honoring their end of the agreement, talk to your Neal Ashmore attorney to address the matter through legitimate avenues.
Modifying a Parenting Plan
Of course, the court understands that life is unpredictable, and that there are valid reasons for needing to change an agreement.
In light of this, parents are free to modify their arrangement when:
- Both parents agree to the changes;
- The child is twelve years old, and wants to change their primary caretaker;
- The custodial parent relinquishes care for at least six months; or,
- There has been a substantial change in circumstance for either party.
Naturally, however, no changes will be enforceable without the court’s stamp of approval, even if you and your ex agree.
Visitation Rights Attorneys in Texas
Getting to spend time with your child is a valuable and deeply meaningful part of being a parent—and that doesn’t change, just because you’re no longer married.
If you are a parent struggling to understand visitation rights during divorce, Neal Ashmore wants to hear from you. Call us at (972) 436-8000, or schedule a consultation online, and let us help protect the relationship with the one you love most: your child.