Articles Posted in Visitation

Can I ask a Texas Court for visitation rights for my grandchild?

Texas allows grandparents to gain court-ordered visitation of grandchildren in very limited circumstances. The reason that the statute allowing grandparent visitation is so limited is because the United States Supreme Court has decided that parents having the ability to make decisions about raising their children is a fundamental right that should not be interfered with by courts. Basically, in the United States we want parents to be able to decide whether their kids get to see their grandparents or not even if the parents don’t seem to have a great reason for keeping their kids away from their grandparents. A parent’s right to decide how their kids are raised is more important under the law than a grandparent’s desire to see their grandchildren.

How does Grandparent visitation work in Texas?

Unfortunately, there are several horror stories about parties appearing pro se (without legal representation) in divorce, child custody, child support, etc. cases.  In fact, most of the time people make the mistake thinking that they can take care of the case themselves and then realize after the fact that they completely screwed it all up.  They then come to hire an attorney to unscrew those problems, which is most of the time easier said than done.  The best advice that can be given is to hire an attorney right at the beginning to ensure that you are fully protected and correctly advised throughout the entire proceeding.  You do not want to go through an entire divorce and then realize that you did something very bad and then try to appeal it, also on your own.  Because it can almost be guaranteed that if you attempt the second feat, appealing a case, on your own it will most definitely not go in your favor.

This issue was directly addressed in In the Interest of C.M., A Child by the 5th District Court of Appeals in Dallas.  In that case, the mother and father appeared and agreed to the terms of their divorce, including the child custody terms.  The Court, on the record, ensured several times that the mother understood what she was agreeing to and that this was in fact the final hearing and final orders to which the mother replied that she did understand.  Unfortunately, the mother realized what she had agreed to post-prove up and realized that basically stripped her of parental rights and left her with only supervised visits.  Therefore, without representation she thought she would appeal the divorce orders with respect to custody stating that she did not understand and she did not consent to the terms as they were based on “false accusations that were not proven.”  However, the Court of Appeals revealed the record of testimony (which is made at all prove ups) and discovered that she did consent to the terms, several times, and even stated she understood several times.

What most people do not understand when they represent themselves is that they do have a right, when facing a consent judgment or agreed order, to withdraw your consent at any time before the judgment is rendered by the court.  So, the problem in this case was that mother had failed to do that and was trying to withdraw her consent post-divorce which the Court of Appeals held cannot happen.  In fact, the Court stated, “Agreed judgments, once rendered, are contracts between the parties that excuse error and operate to end all controversy between the parties.” Pate v. Pate, 874 S.W.2d 186, 188 (Tex. App.—Houston [14th Dist.] 1994, writ denied.   Therefore, the Court held that they believed the mother’s appeal “was intended to constitute a withdrawal of her consent to the terms agreed upon at the bench trial” which was improper.  In the Interest of C.M., at page 11.

You may not think that this distinction is important, but in the world of family law it is imperative that you understand the difference.  It could be the difference between you actually being the father of a child in the eyes of the law as well as differing burdens of how to overcome that label if you are not the child’s biological father.  In fact, if you are in the middle of a divorce or a suit affecting the parent child relationship, knowing your definitions is crucial when it comes to duties to support children and your rights to visiting those children.

Texas Family Code Section 101.0015 defines alleged father as a man who “alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined.”  So, if you think that you are the father of a child but it has not been concluded by court ordered genetic testing—then you are an alleged father.  We see this type of scenario come up in situations such as cases involving the Attorney General’s Office of Texas.  If a woman petitions the Attorney General’s Office for child support, then that agency will file a lawsuit and have all of the alleged fathers served.  It is then your duty to ask for genetic testing if there is any doubt in your mind about whether or not you are the father.  Once genetic testing is completed and paternity is established, you then become an adjudicated father.   Adjudicated father is defined in Texas Family Code Section 160.102(1) as a man who is determined to be the father of a child by the Court.  Therefore, once your paternity is established by results of genetic testing then the Court will name you as the father and proceed forward with child support, visitation, etc.

In contrast, Texas Family Code Section 160.204 defines a presumed father as follows:

In Texas, if the child custody visitation schedules are court-ordered they are typically either standard possession or expanded standard possession (alternate beginning and ending times).   One parent will have the exclusive right to designate the child’s primary residence and then the non-primary parent has the visitation schedule.  In contrast to the school year, summer and spring break visitation schedule, the holiday visitation schedule is regardless of distance between the parents’ residences and most courts only focus on Thanksgiving, Christmas, Mother’s Day and Father’s Day.  However, additional holidays can be requested and ordered such as Easter, Halloween, etc.

In custody orders, holidays are divided out as even and odd years.  So, if you are the primary parent you typically have odd Christmas and even Thanksgiving.   A parent will not have the same year for both holidays.  Because Christmas falls in an odd year this year, the primary parent would have possession of the child from the day the child is released from school until December 28 at noon.  Texas Family Code Section 153.314 specifically sets out the language for the court orders and is follows:

Sec. 153.314.  HOLIDAY POSSESSION UNAFFECTED BY DISTANCE PARENTS RESIDE APART.  The following provisions govern possession of the child for certain specific holidays and supersede conflicting weekend or Thursday periods of possession without regard to the distance the parents reside apart.  The possessory conservator and the managing conservator shall have rights of possession of the child as follows:

In Texas family law cases, there are two separate types of protective documents that parties can seek. Restraining orders are not to be confused with protective orders. Most often, parties seek a restraining order in a divorce or suit affecting the parent-child relationship to take exclusive possession of property or the children. If a restraining order is needed, it is important to seek the restraining order from the very beginning of the case or at or near the time the need is realized.

For instance, in cases involving children and concerns for their safety, the requesting party requests the court to order that the children be removed from the other party’s custody and placed into the requesting party’s custody solely until the court hearing. This means that once removed, the other party will not have any access to the children until the hearing. To qualify for a temporary restraining order of this nature, one must present an affidavit that on its face alleges that if the court did not grant the restraining order, then the child’s physical health and/or emotional development would be significantly impaired. In many cases, this arises when it is discovered that other parent’s actions, decisions, or behaviors are dangerous for the children. Examples include drugs, criminal activity, neglect, absence of the other parent due to hospitalization, jail, etc.

Restraining orders are typically sought when initial pleadings are filed and they are presented to the judge ex parte (without the other party present). Your sworn affidavit will be attached to the pleadings for the restraining order and will contain all of the information for the judge as to why he/she should grant the restraining order. The hearing will be set the same day the judge signs the order and it must occur within 14 days. Therefore, the court holds a quick hearing to allow the other party time to present their own case. It also gives you a chance to put on evidence and bolster your case as to why the judge made the right decision to grant the restraining order in the first place. At this hearing, you can request that the court continue the restraining order. Thought, often times, the court will not completely deny access to the children but rather grant supervised visitation by an appropriate supervisor; this is, of course, if supervised access is warranted and proven necessary. With that said, there are some cases when the need for a a restraining order to remove children arises while the case is pending.  You will still need to submit an affidavit and a request for a restraining order.  However, some counties require that you also send notice to the other party/attorney so that they may be present when you present the restraining order to the court initially.  The hearing will still be held 14 days from the date the judge signed the order.

Are you involved in a divorce or child custody suit and you are concerned that your ex constantly leaves your child with strangers or a relative? Then the right of first refusal might be the answer to your concern. The questions then arise as to how it works and would it be best for your child.

If you or your ex are in possession of your child and you are going to be absent for a certain period of time, then you must first call the other parent before you can leave your child with another relative, babysitter, etc. This provision is a mutual agreement between the parties that if you or your ex are not going to be present after a certain number of hours (can range from 2, 4, 5, etc.) then you agree that the other parent can have possession of the child during your absence. As you can imagine, this provision has both negative and positive aspects.

For instance, you know that if your ex is going to be absent during their scheduled period of possession more than 3 hours then you have the first opportunity to take possession of the child during their absence. This allows for additional time with a parent who may have only a standard possession schedule which reinforces Texas’ public policy of frequent and continuing contact between both parents. After all, who would want a babysitter to watch their child if you know the other parent is available? Would you not want your child to have some extra time with the other parent? Maybe, maybe not. You definitely need to discuss the pros and cons with your attorney.

You get your children back from your ex’s house after their visitation and they are openly telling you all about the divorce case, what your ex has called you and where you should go, etc.  You are appalled and upset that your children know anything about your case.  You call your ex and tell them that this is inappropriate to discuss with the children and they completely dismiss you.  You know that the judge clearly said that neither you nor your ex could discuss anything about the case with your children.

While the damage has already been done with your children with what they have overheard or discussed so far with your ex, there are some helpful requests that you could make to deter this type of behavior.  For starters, as long as your orders do not contain anything requiring an agreement before enrolling the children in counseling then you should do so.  Having a professional who can meet with the children, give them an outlet for their emotions as to the divorce, and help them process the effects of the divorce is such a positive movement forward when this type of situation arises.  If the professional meets with you and discusses any concerns with respect to what they are reporting about your ex, then their testimony can be used in a court hearing.

Additionally, if you do decide to pursue a contempt hearing against your ex for violating a court order (discussing the case with the children and making disparaging remarks about you), then you will need proof of such.  If your children are 10 or older most judges will talk with them and the children can tell the judge themselves what they have overheard or what they have been told.  If your children are too young or are too afraid to be put in the middle, then this would be where a professional’s testimony would be helpful.