Possession of Children

Father’s Rights – Visitation Enforcement

What is needed for visitation enforcement?

  1. A valid court order that has been signed by a judge or issued by the district clerk’s office, certified as having been signed by a judge.
  2. Be sure to read your order thoroughly.  If you do not understand any of the provisions, take it to an attorney and have them explain it to you.
  3. The custodial parent must have been validly served with the court order or it must be shown that the they had prior knowledge of the court order and its content.
  4. The custodial parent must have full knowledge of the above two factors and must be intentionally and willfully violating the court order.

Despite the fact that you may have a valid court order, many police departments do not want to get involved in enforcing civil orders.  If you call the police department and show them the order they may or may not assist you in gaining access to your children.  Despite whether you get your children or not, you need to ask them to create a police report stating that you were there to pick up your children and noting the time and date you were present.  If the police refuse to prepare a report, go to a local grocery store or fast food restaurant and purchase something so that you have a receipt stating that you were in the area and stating the date and time you were there.

How to prove a denial of visitation.

Take a witness along with you – preferably an off-duty constable or deputy or neutral party.   Have your witness stay in the vehicle, but with the window down so that he/she can hear any conversations that take place.  Have your vehicle parked in such a way that the witness can see you at all times.

Take a copy of your divorce decree along with you which shows you are suppose to have possession of your children on the date and time you arrive to pick them up.

Always be on time, and if possible a few minutes early.

If the custodial parent does not answer the door or have the child available to exercise visitation then call the police and request a Police Incident Report.  If the police will not issue a police report then make sure you document the incident as best as possible.  After two or three violations, take the reports, along with any witness statements, to an attorney to discuss how to bring an enforcement action against the custodial parent who is violating the order.

Take a tape recorder with you, have it running from the time you approach the residence, and do not stop it until you leave.  Keep the tape recorder running as you leave the area.

As you approach the residence state the following facts in the recorder:  your complete name, the address you are approaching, the reason you are there “I am going to pick up my children as stated in the final decree,” state who is with you and why, state the time of day, state when you are leaving and a brief description of what occurred.  Keep a written record of each recording and label them according to date.

Keep a calendar of each denied visitation.

Make sure you have a credible witness each time you try to exercise your possession with your children.

Do not argue with your exhibit-spouse regardless of how angry you are or whether you get your children or not.  Staying calm will work in your favor in the long run.

If you file an enforcement action, if the custodial parent continues to deny you visitation after the suit is brought, continue to go and knock on the door to exercise your visitation, as each separate violation of the court order can be used in the enforcement action.

By Nacol Law Firm | Possession of Children
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Active Military Duty: How Will It Affect My Relationship With My Child?

Under Texas legislation the courts have a right to temporarily amend certain existing orders concerning a parent who is ordered to military deployment, military mobilization or temporary military duty. This legislation was set into Texas law, beginning September 1, 2009.

If a conservator is ordered to military deployment, military mobilization, or temporary military duty that involves moving a substantial distance from the conservator’s residence so as to materially affect the conservator’s ability to exercise the conservator’s rights and duties in relation to his or her child, either conservator may file for an order under subchapter (a) of Section 153.702 of the Texas Family Code.

The Court may then render a temporary order in a proceeding under this subchapter regarding:
1. possession of or access to the child; or
2. child support.

A temporary order of the court under this subchapter may grant rights to and impose duties on a designated person (with certain limitations) regarding the child, except the court may not require the designated person to pay child support.

After a conservator’s military deployment, military mobilization, or temporary military duty is concluded, and the conservator returns to the conservator’s usual residence, the temporary orders under this section terminate and the rights of all affected parties are governed by the terms of any court order that was applicable before the conservator was not ordered to military deployment, military mobilization, or temporary military duty.

Further, if the conservator with the exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may order appointment of a designated person to exercise the exclusive right to designate the primary residence of the child during the military deployment, military mobilization, or temporary military duty in the following order of preference:

1. the conservator who does not have the exclusive right to designate the primary residence of the child;
2. if appointing the conservator described by Subdivision (1) is not in the child’s best interest, a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child; or
3. if appointing the conservator described by Subdivision (1) or the person chosen under Subdivision (2) is not in the child’s best interest, another person chosen by the court.

A designated person named in a temporary order rendered under this section has the rights and duties of a nonparent appointed as sole managing conservator under Section 153.371 of the Texas Family Code.

The court may limit or expand the rights of a nonparent named as a designated person in a temporary order rendered under this section as appropriate for the best interest of the child.

If the court appoints the conservator without the exclusive right to designate the primary residence of the child, the court may award visitation with the child to a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child.

1. The periods of visitation shall be the same as the visitation to which the conservator without the exclusive right to designate the primary residence of the child was entitled under the court order in effect immediately before the date the temporary order.
2. The temporary order for visitation must provide that
a. the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator without the exclusive right to designate the primary residence of the child is entitled under the court order in effect immediately before the date of temporary order.
b. The child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316(a) with the designated person considered for purposes of that section to be the possessory conservator;
c. The designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the person has possession of the child; and
d. The designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.
3. The court may limit or expand the rights of a nonparent designated person named in a temporary order under this section as appropriate for the best interest of the child.

If the parent without exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may award visitation with the child to a designated person chosen by such conservator if the visitation is in the best interest of the child. The temporary order for visitation must provide that:
1. the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator described by Subsection (a) would be entitled if not ordered to military deployment, military mobilization, or temporary military duty;
2. the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316, with the designated person considered for purposes of that section to be the possessory conservator;
3. the designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the designated person has possession of the child; and
4. the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual. The court may limit or expand the rights of a nonparent designated person named in a temporary order under this section as appropriate and as is in the best interest of the child.

By Nacol Law Firm | Possession of Children
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Ho! Ho! Ho! Texas Children’s Visitation Schedules and the Holidays

The Holiday season is now upon us and hopefully all parents have worked out the upcoming visitation schedules for the 2011 Holiday Season. But if not….. Here is a reminder of the current Texas Family Law Code’s Standard Possession Order for Holidays.

§ 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:

Christmas Break:
(1) the possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years;
(2) the possessory conservator shall have possession of the child in odd-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in even-numbered years;

Thanksgiving:
(3) the possessory conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years;

Child’s Birthday:
(4) the parent not otherwise entitled under this standard order to present possession of a child on the child’s birthday shall have possession of the child beginning at 6 p.m. and ending at 8 p.m. on that day, provided that the parent picks up the child from the residence of the conservator entitled to possession and returns the child to that same place;

Father’s Day:
(5) if a conservator, the father shall have possession of the child beginning at 6 p.m. on the Friday preceding Father’s Day and ending on Father’s Day at 6 p.m., provided that, if he is not otherwise entitled under this standard order to present possession of the child, he picks up the child from the residence of the conservator entitled to possession and returns the child to that same place;

Mother’s Day:
(6) if a conservator, the mother shall have possession of the child beginning at 6 p.m. on the Friday preceding Mother’s Day and ending on Mother’s Day at 6 p.m., provided that, if she is not otherwise entitled under this standard order to present possession of the child, she picks up the child from the residence of the conservator entitled to possession and returns the child to that same place.

Texas child visitation orders may differ from the norm to accommodate family situations so you should always check your decree first! If in doubt about your holiday visitation time’s contact someone who can help you to make sure nothing happens to affect this special season with your children. ‘Tis the Season!

By Nacol Law Firm | Possession of Children
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Supervised Visitation in Texas – Part 1

Former spouses often use informal visitation arrangements as an opportunity to assault, harass, stalk, and emotional abuse their children and former partners.  In addition, some parents will use their children as a means to hurt the other parent by denying access to the child(ren) even though such access has been ordered by the court, i.e. failing to be at home during scheduled visitation periods, failing to bring the child(ren) to a scheduled location for the other parent to exercise their court ordered visitation, faking illness, etc.

Supervised visitation takes place between the non-custodial parent and his or her child(ren) in the presence of a third party who observes the visit to ensure the child’s physical and emotional safety.  Though sometimes reasonably and successfully ordered, visits voluntarily supervised by friends and family in their homes can be fraught with danger for the child and parent, as well as the monitor, especially in cases of domestic violence.  Family members may trust the parent whose visits are being supervised and therefore may not take proper or sufficient measures to assure the child(ren) are watched or monitored at all times during the visit. 

Consequently, when supervision is indicated, possession/visitation supervised by a neutral third party with the capacity to enforce effective safety measures is normally ordered and enforced by the courts.  The expenses of such supervision are often excessive and may in themselves create a detriment to possession by a parent.  Such agencies may also provide reports and recommendations to the court based on the success or failure of the supervised visits.  Such recommendations assist the courts in making informed decisions regarding supervision and whether continued supervision in the best interest of the child(ren).

If supervised visitation is requested, some type of compelling reason and evidence, based on the circumstances surrounding the child(ren) must normally be established.  Such evidence may include denial of access, drug addiction, mental or physical abuse, neglect, or severe mental illness of a parent.  The following is a potential list of acts and/or circumstances that may be considered contrary to a child’s best interest.

• Violence or physical endangerment – A noncustodial parent may be denied visitation rights if the parent has abused the child or threatened physical violence.
• Emotional harm – Where sufficient proof is offered of potential emotional harm or that standard visitation has detrimentally affected a child’s welfare, supervised visitation may be ordered.
• Child’s wishes – A court may consider the child’s wishes as to visitation.  The weight given to a child’s preference is dependent on the child’s age, emotional stability, maturity and motives.
• Abduction – There must be a showing that there is a strong imminent probability of abduction to limit visitation on this basis.
• Substance abuse – A parent who abuses drugs or alcohol may be ordered to supervised visitation restrictions if the conduct endangers the child or if the parent uses abusive language and/or mistreats the child.
• Mental illness –Mental incapacity may be a reason for supervised visitation only if it is determined by the court that there is a reasonable potential for harm to the child due to such mental illness.
• Sexual behavior – Courts rarely deny visitation solely on the basis of a non-marital heterosexual relationship.  Courts will, however, cancel overnight visitation by a child with a parent because of the parent’s cohabitation on a showing of an adverse and material negative impact on the child.
• Incarceration – Visitations due to incarceration may be suspended only on a showing that such visits are detrimental to the child.

To have more of your questions answered on supervised visitation in Texas, or for answers to any other Texas child custody concerns you may have, call  Dallas Divorce attorney Mark Nacol of the Nacol Law Firm P.C.

By Nacol Law Firm | Possession of Children
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Please contact father’s rights Dallas Attorney Mark Nacol, or father’s rights Dallas Attorney Julian Nacol with the Nacol Law Firm P.C., for legal insight to your rights as a father. Both attorney Mark Nacol, and attorney Julian Nacol , provide counsel in the area of family law including divorce, father’s rights, interstate jurisdiction, child support, child custody, visitation, paternity, parent alienation, modifications, property division, asset division and more. Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization. Our attorneys at The Nacol Law Firm P.C. serve clients throughout Texas, including Collin, Dallas, Denton, Ellis, Grayson, Kaufman, Rockwall and Tarrant counties and the communities of Addison, Allen, Arlington, Carrollton, Dallas, Fort Worth, Frisco, Garland, Grapevine, Highland Park, McKinney, Mesquite, Plano, Prosper, Richardson, Rowlett and University Park, Murphy,Wylie, Lewisville, Flower Mound, Irving, along with surrounding DFW areas.

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