Managing Conservator

Jul
29

Unique Possession Orders that Work with a Fathers Profession

Many professions create impositions on conservators making a standard possession order inapplicable and unworkable. The Court may deviate from a standard possession order if the order is inappropriate or unworkable in reference to the schedules of both the conservators and the child. Unique professions and irregular school schedules for children allow the Court to have flexibility to deviate from a standard possession order that is in the Best Interest of the Child. There are multiple ways in which the Court may depart from a standard possession order to fulfill the needs of all parties involved with the custody of the child.

First, the Family Code § 153.254 states that the Court will be allowed deference to modify the standard possession order if work schedules of either conservators or the school schedule of the child is irregular. The Court must attempt to narrowly tailor the modifications to keep the new possession order as similar to the standard possession order as possible. This instance most commonly occurs when the Managing Conservator and the Possessory Conservator cannot reach an agreement and one of the two Conservators has a unique profession such as a firefighter, police officer, or airline pilot. The working hours of these jobs allow the Court to modify the standard possession order even if both of the parties do not comply with the changes. The modifications must be made only if it is in the Best Interest of the Child.

Secondly, the standard possession order may always be modified if it is by the mutual agreement of both the Managing Conservator and Possessory Conservator. Family Code § 153.007 is the Agreed Parenting Plan Statute and allows for both parties to agree on a standard possession order for the child. This statute was passed to promote amicability in settlement for child custody issues and to give flexibility to the parents if they are willing to agree on custody terms. The Agreed Parenting Plan must be in the Best Interest of the Child for the Court to approve. If the Court grants the Agreed Parenting Plan then the Managing or Possessory Conservator will have a remedy as a matter of law for any violation of the agreement committed by either party.

Finally, both Conservators may enter into a Mediated Settlement Agreement under Family Code § 153.0071. A Mediated Settlement Agreement is the only time in which the Court will NOT look at the Best Interest of the Child when granting the custody agreement.

The Mediated Settlement Agreement § 153.0071 must be:

  • In bold, underlined, and capital letters that the agreement is NOT REVOCABLE
  • Signed by Both Parties to the agreement
  • Signed by the lawyers (if represented) of each party

The Mediated Settlement Agreement is binding and not revocable so if the Conservators wish to go this route they must understand that what is in the agreement will be held as binding. This method can be used to modify or change a standard possession order and the Court will not look at the Best Interest of the Child regarding the agreement, unless there exists a credible threat of domestic violence.

These are the methods in which a unique possession order may be obtained to accommodate irregular schedules or working hours of both the conservators. Any possession order must be correctly drafted and all future contingencies must be accounted for. An experienced lawyer must be contacted to safeguard an individual’s custody rights of their children and to make sure that a fair custody arrangement is obtained.

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Jan
12

Standard Possession Orders in Texas

The possession order for both mother and father in any divorce must be in the Best Interest of the child and the Court has specific guidelines it must follow if both parents refuse to agree to custody arrangements. The Managing Conservator has primary custody of the child and the Possessory Conservator has visitation but is not the primary custodian of the child. The guidelines set forth by the Court regarding custody for parents living 100 miles or less of each other and parents that reside over 100 miles from each other are listed in the Family Code § 153.312 and § 153.313.  

Family Code § 153.312 Standard Possession Order, regarding parents who reside 100 miles or less of each other, states the Possessory Conservator will have the following rights:

  1. Have custody of the child throughout the beginning of the year at 6 p.m. on the first, third, and fifth Friday of each month and ending at 6 p.m. on the following Sunday.
  2. On Thursdays of each week during the regular school term beginning at 6 p.m. and ending at 8 p.m. unless the Court finds this is not in the best interest of the child.
  3. Custody of the Child for 30 consecutive days during the summer but the Possessory Conservator will be required to give written notice to the Managing Conservator by April 1st of each year specifying the extended period of possession for the summer. If Possessory Conservator does not give written notice on April 1st, then the Possessory Conservator shall have access to the child from 6 p.m. July 1st to 6 p.m. July 31st of each year.

Family Code § 153.313 Standard Possession Order, regarding parents who reside over 100 miles from each other, states the Possessory Conservator will have the following rights:

  1. Have custody of child throughout the beginning of the year at 6 p.m. on Friday of the first, third, and fifth weekend of each month and ending at 6 p.m. that Sunday. The Possessory Conservator may also elect an alternate weekend if he/she gives a 14-day notice either written or telephonic to the Managing Conservator.
  2. The visitations on Thursdays nights are not mandated under this section due to the distance between the two parents.
  3. Custody of Child for 42 consecutive days during the summer but the Possessory Conservator will be required to give written notice to the Managing Conservator by April 1st of each year specifying the extended period of possession for the summer. If the written notice is not given then the Possessory Conservator shall have access to the child from 6 p.m. on June 15th to 6 p.m. July 27th.

The Court shall follow these guidelines unless it is NOT in the Best Interest of the child. These guidelines are needed because of the contention between both parents and the common inability to find a middle ground when it comes to custody of a child. The Court may deviate from these standard Guidelines but only if a parent can prove by clear and convincing evidence that it is in the Best Interest of the Child. If these guidelines are unworkable because of the child’s schedule then the Court will make exceptions but attempt to keep the custody arrangements as close to the guidelines as possible. Custody issues can be vexing and straining on both parents. To ensure you receive a fair outcome to see your child, it is wise to seek an experienced attorney to ensure that the sacred right to see your child is not infringed.

By Nacol Law Firm | Possession of Children
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Jun
15

New Texas Family Laws – Effective September 1, 2015

Now that the Texas Legislature has ended, we will review some of the bills passed that will affect our Family Law Cases.

S.B. 814 Waivers of Citations in Certain Family Law Suits

Currently, the state of Texas allows for a parties involved in a divorce to waive service. Loosely translated, that means that the person named in the divorce suit can sign a paper which proactively tells the relevant court that they are officially aware their spouse is filing for divorce. This waiver means they don’t have to physically be served with the divorce papers by their spouse or a process server, potentially saving everyone involved a bit of time, money, and maybe some emotional pain

S.B. 814 was introduced to further the use of such waivers to apply to other common family law matters.

The waiver should also be used for:

  • Suits to remove disability of a minor (commonly referred to as emancipation)
  • Suits to change the name of an adult or child
  • Any suits relating to a parent-child relationship

The bill passed and will take effect on September 1, 2015.

S.B. 817: Issuance of a protective order and appointment of a managing conservator in certain family law proceedings.

S.B. 817 proposes that the state change the language on applications for protective orders (restraining orders, etc.) by switching the word “victim” with the phrase “applicant for a protective order.” Specifically, this change is meant to help those people who are applying for the protective order on behalf of the actual victim of the abuse or violence.

Some judges are currently reluctant to sign orders which list the applicant as a “victim” because doing so indirectly endorses the allegations of abuse as being true without a trial. With the label change, it removes that concern and will enable judges to issue more orders to protect those in need.

The bill passed virtually unopposed, and will take effect on September 1, 2015.

S.B. 314: Appointment of a non-parent as managing conservator of a child.                                     

This law addresses a growing number of complaints by relatives who assume custody of children removed from their parents’ homes by CPS (Child Protective Services).  This type of custody is called “permanent managing conservatorship,” or PMC. It is not adoption and does not carry the same legal meaning, but many relatives claim that these differences are not clarified by CPS.

As a result, the bill requires a court awarding custody to specifically explain 3 common misunderstandings to the relatives or non-parents assuming PMC.

  • PMC rights are specified by the court, and are not the same as rights associated with adoption
  • The parent(s) can still request visitation, and can request to become the managing conservator
  • PMC does not qualify nor disqualify the relative or non-parent for/from post-adoption benefits

The bill states that if the non-parent assuming PMC does not appear in court, the court must then have evidence that they were advised of this information.

The bill passed without opposition, and will take effect on September 1, 2015.

 

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Visitation with your children for the 2014 Holidays – Texas Standard Visitation Guidelines

Now is the time to start working on your Holiday 2014 Schedule for visitation with your children during this wonderful time of year! We would suggest that you review your individual order to see if you have specific provisions concerning visitation.  Because many families have specific situations that occur during this special time, this visitation time is the most modified area in the Standard Possession Order. The Holiday schedule will always override the Thursday or Weekend schedules.

Here is a reminder of the current Texas Family Law Code’s Standard Possession Order for the 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:

Texas Family Law Code’s Standard Visitation Guidelines for 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;

Texas Family Law Code’s Standard Visitation Guidelines for 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;

Texas Family Law Code’s Standard Visitation Guidelines for 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;

Texas Family Law Code’s Standard Visitation Guidelines for 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;

Texas Family Law Code’s Standard Visitation Guidelines for 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, contact a family law attorney who can help you to make sure nothing happens to affect this special season with your children. ‘Tis the Season To Be Jolly’!

By Nacol Law Firm | Possession of Children
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What about a Texas Father’s Summer Visitation? The Standard Child Possession Order – Texas Family Code

When parents are battling over divorce issues and child custody, they often times do not understand that the Texas Family Code has expanded the standard child possession order to make joint managing conservators with more equal rights and duties and possession of the child. It is important to keep in mind that, under certain circumstances, and depending on the age of a child, a judge may alter the standard possession order in any way that serves the best interest of the child.

The following is an example of a standard possession order for a parent who lives within 100 miles of their child under the Texas Family Code.

IT IS ORDERED that the conservators shall have possession of the child at times mutually agreed to in advance by the parties, and, in the absence of mutual agreement, it is ORDERED that the conservators shall have possession of the child under the specified terms set out in this Standard Possession Order.

PARENTS WHO RESIDE UNDER 100 MILES APART:

Except as otherwise explicitly provided in this Standard Possession Order, when Possessory Conservator resides 100 miles or less from the primary residence of the child, Possessory Conservator shall have the right to possession of the child as follows:

3. Weekends—
Weekends that do not occur during the regular school term, beginning at 6:00 p.m. on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday.

2. Extended Summer Possession by Possessory Conservator—

With Written Notice by April 1—If Possessory Conservator gives Managing Conservator written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Possessory Conservator shall have possession of the child for thirty days beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation in that year, to be exercised in no more than two separate periods of at least seven consecutive days each, as specified in the written notice, provided that the period or periods of extended summer possession do not interfere with Father’s Day Weekend. These periods of possession shall begin and end at 6:00 p.m.

Without Written Notice by April 1—If Possessory Conservator does not give Managing Conservator written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Possessory Conservator shall have possession of the child for thirty consecutive days in that year beginning at 6:00 p.m. on July 1 and ending at 6:00 p.m. on July 31.

Notwithstanding the Thursday periods of possession during the regular school term and the weekend periods of possession ORDERED for Possessory Conservator, it is explicitly ORDERED that Managing Conservator shall have a superior right of possession of the child as follows:

2. Summer Weekend Possession by Managing Conservator—If Managing Conservator gives Possessory Conservator written notice by April 15 of a year, Managing Conservator shall have possession of the child on any one weekend beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on the following Sunday during any one period of the extended summer possession by Possessory Conservator in that year, provided that Managing Conservator picks up the child from Possessory Conservator and returns the child to that same place and that the weekend so designated does not interfere with Father’s Day Weekend.

3. Extended Summer Possession by Managing Conservator—If Managing Conservator gives Possessory Conservator written notice by April 15 of a year or gives Possessory Conservator fourteen days’ written notice on or after April 16 of a year, Managing Conservator may designate one weekend beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation, during which an otherwise scheduled weekend period of possession by Possessory Conservator shall not take place in that year, provided that the weekend so designated does not interfere with Possessory Conservator’s period or periods of extended summer possession or with Father’s Day Weekend.

PARENTS WHO RESIDE OVER 100 MILES APART:

If the possessory conservator resides more than 100 miles from the residence of the child, the possessory conservator shall have the right to possession of the child as follows:

1. Summer Possession:

(A) Gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 42 days beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each with each period of possession beginning and ending at 6 p.m. on each applicable day; or

(B) Does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 42 consecutive days beginning at 6 p.m. on June 15 and ending at 6 p.m. on July 27;

2. If the managing conservator gives the possessory conservator written notice by April 15 of each year the managing conservator shall have possession of the child on one weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during one period of possession by the possessory conservator under Subdivision (3), provided that if a period of possession by the possessory conservator exceeds 30 days, the managing conservatory may have possession of the child under the terms of this subdivision on two nonconsecutive weekends during that time period, and further provided that the managing conservator picks up the child from the possessory conservator and returns the child to that same place; and

3. If the managing conservatory give the possessory conservator written notice by April 15 of each year, the managing conservator may designate 21 days beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each with each period of possession beginning and ending at 6 p.m. on each applicable day, during which the possessory conservator may not have possession of the child, provided that the period or periods so designated do not interfere with the possessory conservator’s period or periods of extended summer possession or with Father’s Day if the possessory conservator is the father of the child.

Holidays Unaffected by Distance

Notwithstanding the weekend and Thursday periods of possession of Possessory Conservator, Managing Conservator and Possessory Conservator shall have the right to possession of the child as follows:

Father’s Day Weekend—Father shall have the right to possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Father’s Day and ending at 6:00 p.m. on Father’s Day, provided that if Father is not otherwise entitled under this Standard Possession Order to present possession of the child, he shall pick up the child from the other conservator’s residence and return the child to that same place.

General Terms and Conditions
Except as otherwise explicitly provided in this Standard Possession Order, the terms and conditions of possession of the child that apply regardless of the distance between the residence of a parent and the child are as follows:

1. Surrender of Child by Managing Conservator—Managing Conservator is ORDERED to surrender the child to Possessory Conservator at the beginning of each period of Possessory Conservator’s possession at the residence of Managing Conservator.

If a period of possession by Possessory Conservator begins at the time the child’s school is regularly dismissed, Managing Conservator is ORDERED to surrender the child to Possessory Conservator at the beginning of each such period of possession at the school in which the child is enrolled. If the child is not in school, Possessory Conservator shall pick up the child at the residence of Managing Conservator at 6:00 p.m., and Managing Conservator is ORDERED to surrender the child to Possessory Conservator at the residence of Managing Conservator at 6:00 p.m. under these circumstances.

2. Surrender of Child by Possessory Conservator—Possessory Conservator is ORDERED to surrender the child to Managing Conservator at the residence of Managing Conservator at the end of each period of possession.

3. Return of Child by Possessory Conservator—Possessory Conservator is ORDERED to return the child to the residence of Managing Conservator at the end of each period of possession. However, it is ORDERED that, if Managing Conservator and Possessory Conservator live in the same county at the time of rendition of this order, Possessory Conservator’s county of residence remains the same after rendition of this order, and Managing Conservator’s county of residence changes, effective on the date of the change of residence by Managing Conservator, Possessory Conservator shall surrender the child to Managing Conservator at the residence of Possessory Conservator at the end of each period of possession.

If a period of possession by Possessory Conservator ends at the time the child’s school resumes, Possessory Conservator is ORDERED to surrender the child to Managing Conservator at the end of each such period of possession at the school in which the child is enrolled or, if the child is not in school, at the residence of Managing Conservator at [address].

4. Surrender of Child by Possessory Conservator—Possessory Conservator is ORDERED to surrender the child to Managing Conservator, if the child is in Possessory Conservator’s possession or subject to Possessory Conservator’s control, at the beginning of each period of Managing Conservator’s exclusive periods of possession, at the place designated in this Standard Possession Order.

5. Return of Child by Managing Conservator—Managing Conservator is ORDERED to return the child to Possessory Conservator, if Possessory Conservator is entitled to possession of the child, at the end of each of Managing Conservator’s exclusive periods of possession, at the place designated in this Standard Possession Order.

6. Personal Effects—each conservator is ORDERED to return with the child the personal effects that the child brought at the beginning of the period of possession.

7. Designation of Competent Adult—each conservator may designate any competent adult to pick up and return the child, as applicable. IT IS ORDERED that a conservator or a designated competent adult be present when the child is picked up or returned.

8. Inability to Exercise Possession—each conservator is ORDERED to give notice to the person in possession of the child on each occasion that the conservator will be unable to exercise that conservator’s right of possession for any specified period.

9. Written Notice—written notice shall be deemed to have been timely made if received or postmarked before or at the time that notice is due.

10. Notice to School and Managing Conservator—If Possessory Conservator’s time of possession of the child ends at the time school resumes and for any reason the child is not or will not be returned to school, Possessory Conservator shall immediately notify the school and Managing Conservator that the child will not be or has not been returned to school.
Again, a Judge may under varied circumstances change any provision of a Standard Possession Order.

By Nacol Law Firm | Possession of Children
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Page 1 of 212

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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