One Size Does Not Fit All: Possession for Children Under Three

If you have been involved in a suit affecting the parent-child relationship you are probably familiar with the Standard Possession Order. In Texas, the law presumes that the Standard Possession Order (Thursday nights and 1st, 3rd, and 5th weekends of each month, with shared holidays and 30 days in the summer for the non-custodial parent) is in the best interest of the children over three years of age. But what about children under three? The answer is not quite as simple.

For children under the age of three, the Standard Possession Order does not apply. The Texas legislature has declined to provide a set schedule for children this young, instead opting to provide us with a list of factors, including the caregiving provided to the child and the effect on the child that may result from separation from either party, the court should take into account when determining a possession. Texas Family Code 153.254 provides:

A) The court shall render an order appropriate under the circumstances for possession of a child less than three years of age. In rendering the order, the court shall consider evidence of all relevant factors, including:

1. the caregiving provided to the child before and during the current suit;

2. the effect on the child that may result from separation from either party;

3. the availability of the parties as caregivers and the willingness of the parties to personally care for the child;

4. the physical, medical, behavioral, and developmental needs of the child;

5. the physical, medical, emotional, economic, and social conditions of the parties;

6. the impact and influence of individuals, other than the parties who will be present uring periods of possession;

7. the presence of siblings during periods of possession;

8. the child’s need to develop healthy attachments to both parents;

9. the need for continuity of routine;

10. the location and proximity of the residences of the parties;

11. the need for temporary possession schedule that incrementally shifts to the schedule provided in the prospective order under Subsection (d)[The Standard Possession Order] based on:

a) the age of the child; or

b) minimal or inconsistent contact with the child by a party;

12. the ability of the parties to share in the responsibilities, rights, and duties of parenting; and

13. any other evidence of the best interest of the child.

Keep these factors in mind when talking with your attorney about a possession schedule for your young child. These things will be what the court looks at in making a decision. Without a statutory schedule as a fall back, it is important to present evidence that gives the court as much information as possible about these factors.

Stay tuned next week for sample possession schedules for children under three. If you want to learn more about the Standard Possession Order, see Sarah Darnell’s recent blogs on this subject.

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