If you are getting divorced and will be sharing custody of a child, what can you expect regarding visitation and the possession schedule? Even if the other parent will have primary custody, you as the non-custodial parent should expect to have reasonable visitation rights and access to your child.
Who determines what is reasonable and how often will you get to see your child? What happens if there is a failure to exercise parenting time or contact by one parent? How long does it take to get visitation rights? When can you deny visitation to the non custodial parent? Read on to find out.
What is visitation rights protocol in Texas and how does it usually work?
And what is reasonable visitation for the non-custodial parent? The state of Texas believes it’s usually best for both parents to play a role in a child’s life and that both parents have a legal right to spend time with their child (unless a parent poses a physical or emotional danger to the child).
Texas judges always give parents the option to be flexible and create their own possession schedules. The custodial and non-custodial parents are welcome to sit down and figure out for themselves, what are reasonable visitation rights that work for both parties. If you and the other parent can agree on a schedule, you can put it in writing and submit it to the court.
Judges understand that one or both parents may have non-traditional schedules and following a strict custody and visitation schedule—where parents are ordered to see their child on specific days and times—may not work.
For example, parents who work crazy shifts or serve as firefighters, police officers or healthcare workers often need a more flexible schedule that allows them visitation rights that ensure access to their child. The courts are willing to work with these parents to create a schedule that works for both parents and the child.
What happens when parents can’t agree on visitation?
When parents cannot agree on visitation, the judge will put a possession schedule in place so neither parent goes without seeing his or her child. In the final order, the beginning of the possession agreement typically reads something like this: “Parents can agree to whatever they want but failing agreement, here’s what the schedule will look like.”
The Standard Possession Order (SPO) is the default possession order in Texas. With a typical SPO, children spend the first, third and fifth weekends of the month along with one weeknight evening with the non-custodial parent during the school year. As detailed in the Texas Family Code, the SPO also covers parental visitation rights for holidays and summer vacation.
Non-custodial parents who want more time with their children can request a Texas Expanded Standard Possession Order (ESPO). With a typical ESPO, children also spend Thursday nights with the non-custodial parent, who keeps the child until the Monday mornings following their regularly assigned weekends as well. As with an SPO, the Texas Family Code spells out how holiday and summer vacation parental visitation typically works with an ESPO.
Visitation rights non-custodial parent: When the “reasonable” approach doesn’t work
Flexible visitation rights can be tremendously helpful for busy parents who are still civil with one another, but these flexible arrangements don’t work for everybody. Many parents don’t get along after a divorce. In some cases, the parent with primary custody of a child may even try to keep his or her ex from ever seeing their child, simply out of spite.
Even parents who once co-parented amicably can have a falling out, but that doesn’t mean non-custodial parents have to give up their parental rights. If the custodial parent (referred to as the primary conservator in Texas) strays from what the two initially agreed to as what are reasonable visitation rights, it’s usually best for the non-custodial parent to seek legal advice on next steps.
For example, if you end up in a situation where your ex stops cooperating and makes it difficult for you to see your child, you may need to seek a custody modification with a visitation schedule that is more clearly defined. As a parent in Texas, you typically do have a legal right to spend time with your child, and an experienced family law attorney can help you regain your parental rights.
For parents wondering, when can you deny visitation to the non custodial parent, spite is not an acceptable reason. In fact, if you have custody orders in place, the reasons to withhold visitation and reasons to deny overnight visitation are few and far between. If you’re considering withholding visitation from non custodial parent and do so, you could be held in contempt of court for violating your custody and visitation orders.
So, when can a custodial parent deny visitation rights? For example, can you deny visitation if parent has warrants or if you believe your child is in danger at the hands of the other parent? Even if a parent has warrants out for him or her, doesn’t mean you have grounds for denying visitation. Warrants accuse someone of committing a crime, they do not constitute a conviction. If the parent is convicted of certain crimes (particularly those involving harm to a child or sexual assault of the other parent), you may be able to file for a modification of custody orders because a judge would likely find such convictions to be good reasons to deny child visitation.
Denying visitation is rarely a good idea but if you believe the other parent poses an immediate threat to your child, you’ll need to act fast. Ask an attorney about next steps, call police and get Child Protective Services involved. Your attorney can help you file for a temporary restraining order and take steps to get an emergency protective order put in place if the situation warrants it.
What if non-custodial parent does not exercise visitation?
While Texas courts will step in when a parent denies another parent court-ordered visitation, the courts cannot force a parent to spend time with his or her child. However, if the non-custodial parent routinely misses visitation, the parent with primary custody could petition the court to modify the visitation agreement—but limiting visitation may do more harm than good.
Unfortunately, the child is the one who ends up suffering in these situations. Children often blame themselves when a parent promises to pick them up for visitation then doesn’t show up. We strongly encourage the primary parent NOT to disparage the no-show parent and seek guidance from a family counselor instead.
How long does it take to get visitation rights?
Establishing visitation rights can go much faster when a child custody suit is filed in conjunction with a divorce. Temporary orders—including visitation—are put in place pretty quickly once a divorce is filed. How soon you can finalize official custody and visitation arrangements depends on a variety of factors and how badly parents want to resolve their divorce and custody issues.
On the other hand, it may take longer for parents who never married to get visitation rights nailed down. Again, it all depends on the circumstances and how well the unmarried parents get along. An attorney experienced in child custody disputes can help you weigh your options.
Allowing too much flexibility in visitation rights can be problematic
Sometimes life and unforeseen circumstances force parents to alter schedules and end up caring for their children more or less than their possession schedule dictates. We saw this happen to many parents during the pandemic and strongly encourage parents to speak with an attorney about steps to take when drastic changes to work and life circumstances occur.
Due to COVID-19, many non-custodial parents ended up working from home (or were home due to job loss) and caring for and home-schooling their kids who couldn’t go to school. In addition, many primary parents were forced to work long shifts on the front lines (doctors, nurses, first responders, etc.) and had to rely on non-custodial parents to keep children for extra hours or days.
These “temporary” schedule adjustments often lasted for several months. Some custodial parents worried they would lose custody, while many non-custodial parents were left wondering why they were still paying child support since they were sharing custody 50/50. Other parents hoped to be legally granted more possession time—since they had their kids more anyway—and called us about custody modifications.
Changes in circumstances may give some parents the grounds to request a modification, so it’s important to speak with a family law attorney about potential consequences and how to protect your visitation rights BEFORE these changes become “routine.”
However, it does NOT give a parent the right to stop paying child support. In fact, even getting a legal 50/50 custody arrangement in Texas doesn’t automatically mean you won’t have to pay child support—in most cases you will still have to pay something. Don’t assume anything—contact an attorney.
Visit our COVID-19 Resources Page to learn more about navigating child custody and visitation during the pandemic.
Have questions about what are reasonable visitation rights in Texas?
If you have questions about reasonable visitation rights or when can you deny visitation to the non custodial parent, our family law lawyers in Fort Worth TX are here to help. To schedule a confidential case review with our founder Fort Worth divorce lawyer Justin Sisemore, contact our firm by phone at (817) 336-4444 or connect with us online.
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