What is the Difference Between Possession, Standard Visitation, and Access?
Possession and access schedules in Texas spell out how separated parents will divide their parenting time. They form crucial components of parenting plans. Courts often allow parents to create their possession schedules as they deem fit, depending on what works best for their families. The court only approves them if the plan is in the child’s best interests. Customized possession schedules have become quite popular in recent years. Even in cases where the periods of parental possession of their children is spelled out, there is usually a clause that allows the parents to be flexible and adjust the schedule by mutual agreement. However, in the absence of an agreement, the court order is the only thing that can be enforced, so it is critical to have a lawyer draft the court order in a way that will safeguard the times with your children that are most important to you.
A common question is about the difference between a possession and an access schedule. If you’re unsure what you have, consult lawyers from a Family law firm in San Antonio, TX.
A possession schedule allows you to see the child in person and decide where they go, while an access schedule allows you to interact with them via text, phone, or social media. You may also attend the child’s activities at school or access their medical records. Since Texas law provides that joint managing conservatorship is presumed, in cases when the court orders access only, with no possession, that would require the court to find it is NOT in the best interests of the child for the parent to have possession of the child. However, for a grandparent or other relative seeking to have time with the child, it may be an easier route to take to seek an order just for access, rather than fighting for custody. Even parents who have periods of court-ordered possession, will often want to have some electronic communication and access during the times when they are not in possession of the children.
More into the Details of a Possession Schedule
A possession order or schedule defines when each parent or guardian has the right to spend time with the child, usually to the exclusion of the other parent. It is the equivalent of physical custody, as commonly referred to in other states, while access is the equivalent of visitation.
Texas laws recognize several types of possession orders as follows:
Standard Possession Order
A Standard Possession Schedule is sometimes referred to as “standard visitation,” but the judges in Texas want to emphasize that both parents should be parenting, not just visiting their children. Under this type of order, the non-custodial parent’s visitation schedule includes the weekends, spring break, holidays, summer vacation, and other crucial events in the child’s life. It’s also known as the “default” schedule under Texas Family Code 153.252, believed to be in the best interest of a child age three or older. In other words, it is an easy route for the Judge’s to go because it has already been approved as a fair schedule that is in the best interests of the children in most cases.
The basic possession schedule allows the non-custodial parent to choose an “election” schedule to accommodate different possession times depending on how far they live from the custodial parent as follows:
- Within 100 miles from each other: Alternating holidays, 1st, 3rd, and 5th weekends of the month, 30 days during summer vacation, and Thursday evenings during the school year
- More than 100 miles from each other: No mid-week visit, the same weekend schedule as with the 100-mile radius, or it may be reduced to one weekend per month, same holiday schedule, and 42 days during summer vacation.
- More recently a third schedule has been added to the law to take into account parents who live within 50 miles or less of each other: This schedule, also known as “extended standard” allows for alternate beginning and ending times so that the parent not in possession may pick up the child from school on Friday and return the child to school the following Monday morning rather than returning the child to the other parent on Sunday evening. Texas Family Code 153.3171 and 153.317.
If you and your child’s other parent or guardian can’t agree on this schedule, consult a child custody lawyer in San Antonio for legal counsel on your rights and options in possession and access.
Supervised Possession Order
A court may issue a supervised possession order if there is reason to be concerned about the child’s safety. Under this type of schedule, the parent’s time with the child will be supervised by a family member, an agency, or a neutral third party in the child’s best interests.
In rare circumstances, the court may order that the parent has no visits. This happens upon the determination that even with supervision, the parent still poses a physical or emotional risk to the child. If you’re concerned about your child’s safety in the hands of the other parent, it’s crucial to talk to an experienced San Antonio child custody attorney.
Modified Possession Order
You and the other parent may determine that the standard possession schedule order doesn’t work favorably for your family. In other cases, one parent may contest the order in court, and the judge may determine that the order must be modified. A modified possession order implies anything different from the Standard Possession Order.
An experienced child custody attorney in San Antonio, TX, can help you write a modified possession order that protects parental rights while promoting your child’s best interests.
Possession Orders for Children Under Three
The Texas Family Code 153.251(d) presumes that the Standard Possession Order doesn’t uphold a child’s best interest when they’re under three years. While you and the other parent may still agree to use the SPO, using a different schedule is advisable.
If you can’t agree, the judge will issue an order considering all the crucial factors. Your family law attorney may also help you draft one that best meets your family’s needs.
What is an Expanded Standard Possession Order?
An Expanded Standard Possession Order, also known as “extended standard,” is a more “stretched-out” SPO that grants the non-custodial parent more time with the child, such as extended summer vacations and overnight stays. Recently, the custody laws in Texas changed to automatically allow non-custodial parents who live within 50 miles more time with their children. However, for many years prior to the change in law, the judges in Texas have been ordering extended or expanded standard under their power of discretion.
The New 50-Mile Visitation Law
In the new rules that took effect on September 1, 2021, non-custodial parents living within 50 miles of the custodial parent have more visitation time, thanks to a “shared parenting bill” or “equal parenting.” Non-custodial parents can have physical custody of the child more than 40% of the time, contrary to the previous bill when they only had 20% to 24% of the time.
However, the new 50-mile possession order is optional, especially if it doesn’t work out well for the non-custodial parent. They can opt out of the ESPO and share custody under the SPO schedule.
How Can I Get a Possession Order?
A judge may order a possession schedule order as part of your:
- Divorce decree
- Suit affecting parent-child relationship during a separation
- Family violence protective order case
- Paternity case
Consult your custody attorney in San Antonio about the schedule to ensure your child’s best interests are protected and that your child isn’t unfairly kept away from you.
What if my Work Schedule Doesn’t Fit a Standard Possession Schedule?
Many parents who work weekends or shifts find that the Standard Possession Schedules just do not fit well with their work schedules. Other times, parents want to customize their possession schedule to one that makes more sense to them. An increasingly popular schedule is Week On and Week Off where the parents exchange possession every week or perhaps every two weeks. There are many variations of this.
If you desire a customized possession schedule to fit your situation, it is especially important to have a Texas family law and divorce attorney help you with writing that order in a way that can be enforced. It is very easy to have misunderstandings and future disputes over the meaning of the possession schedule if it is not written well.
A Family-Oriented Legal Representative Helping You Protect Your Family’s Well-being
Parenting plans are among the most emotive issues during a divorce or separation. Texas child custody law recognizes four types of possession orders and recently included a fifth one that strives to give equal parenting rights to the non-custodial parent as the custodial parent. Talk to a skilled child custody attorney if you and your ex-spouse can’t agree on the best possession schedule.
Lawyers who have worked long enough in the field of family law understand how custody cases work and fight to uphold the child’s best interests and the parent’s rights. Our family law and estate planning law firm has compassionate and skilled child custody attorneys who strive to work for the most favorable outcome for all involved. Book a case evaluation with us today for the best results.