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Visitation for Children under 3 – Changes in the Law

By Mark Scroggins, Attorney

This summer, the Texas legislature took up the issue of a possession order for a child under three years of age.  One would think that providing guidance for matrimonial law practitioners and judges alike on this issue would reduce the amount of heavily litigated custody matters in the district courts of Collin,Denton,Dallas and Tarrant counties.  Unfortunately, I’m afraid the legislature just provided an outline for additional custody litigation and these north Texas counties will continue choking on the volume of heavily litigated family law matters on their dockets.

Any person in a child custody dispute becomes familiar with a Standard Possession Order (hereinafter, “SPO”).  The SPO sets forth the possession and access schedule for the possessory conservator of the child in most instances.  That, however, is not the case in a child custody matter when dealing with a child under the age of three.

Section 153.254 of the Texas Family Code addresses possession and access issues of the possessory conservator of a child under three years of age.  Prior to the enactment of the new statute by the Texas legislature this summer, 153.254 just called for the court to render an appropriate order for a child younger than three with a presumptive transition to an SPO upon the child’s third birthday.

Needless to say, the previous statute was pretty vague and left the door open for interpretation of what was in the particular child’s best interest.  As such, child custody litigation ensued in high conflict cases.

Hearing the outcry from individuals, as well as family law practitioners, the Texas legislature enacted a new version of Section 153.254 of the Texas Family Code which went into effect on September 1, 2011.  Surely, this new statute would provide guidance on possession and access issues like an SPO and reduce the amount of contentious litigation over this issue, right?  Wrong.

Section 153.254, now supplies a laundry list of factors that the trial court should consider when determining the appropriate possession schedule for the possessory conservator of a child under three.  Specifically:

  1. the care giving 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 individual, other than the parties, who will be present during periods of possession;
  7. the presence of siblings during periods of possession;
  8. the child’s need to develop healthy attachments to both parties;
  9. the child’s need for continuity of routine;
  10. the location and proximity of the residences of the parties;
  11. the need for a temporary possession schedule that incrementally shifts to the schedule provided in the prospective order under subsection (d)…;
  12. the ability of the parties to share in the responsibilities, rights and duties of parenting; and
  13. any other evidence in the best interest of the child.

What is the net effect of these additions?  No one knows just yet, but I fear, we might see more family law litigation than less.  While I appreciate the legislature codifying factors that should be considered in a child custody fight over a child under three years of age, it does very little to curb the amount of litigation over this particular issue.  As such, I believe we can expect continued litigation due to the vagueness of the statute.

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