Modifying a Visitation Schedule

The divorce has been final for a couple of years and circumstances have changed. You may be remarried, the distance between your home and your ex-spouse’s home is different, your spouse took a job in the oil industry and is away for weeks at a time, or the kids are older and want to spend more or less time with the other parent. What should you do?

Virtually every visitation order in Texas makes the following statement:

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 herein.

Parties can agree to any visitation plan they want – so long as they both agree. They don’t have to go hire attorneys or file a new lawsuit to agree to modify a visitation order. Our legislation encourages parents to reach agreements regarding time spent with children. Basically, this provision makes the specific dates and times included in the order a “default” in the event an agreement is not reached. The issue is what to do in the absence of agreement or if you want to enforce the informal agreement? In that case, you’ll need to file a suit to modify the order.

What are the factors the court will consider when modifying a visitation order?

The Texas Family Code prioritizes the “best interest of the child” in determining the terms of a conservatorship order, including visitation schedules. This sounds like a pretty broad stroke for what comes into evidence – and it is. The code also states that the “standard” possession order (or SPO) is presumed to be a “minimum” amount of time that children should spend with the noncustodial parent, unless evidence is presented that the “presumption” is not true with your children. An SPO includes the first, third and fifth weekend of each month, determined by

Fridays, overnights every Thursday during the school year, splitting holidays and either 30 or 42 days in the summer, depending on the distance between the parties. If all elections available for noncustodial parent in the code are taken such as picking up at school and returning to school on Mondays, this can be up to 42% of the time.

Why would a judge decide an SPO is NOT in my child’s best interest?

Again, Courts can consider many factors. Will the SPO give the noncustodial parent meaningful time with the child if that parent now works a 14 day on and 14 day off work schedule? Unless other factors outweigh the modification, it is likely the Court will modify the order so that visitation is more aligned with the visiting parent’s work schedule. If the SPO allows overnight visitation on Sundays and return to school on Monday, and the child is habitually late to school after visits, or Monday test scores drop, the Court will likely modify so that the visiting parent must return the child home on Sunday evenings. If the noncustodial parent moves out of state and the SPO allows 42 days of access but the child is involved in sports or activities that require summer attendance, the Court will generally modify the order so that the child’s best interest is served and the non-custodial parent has meaningful time with the child.

Are provisions made in the SPO based on the age of a young child?

The Texas Family Code presumes the SPO is in the best interest of children over three years of age, so what does the code state is best for toddlers? The law is silent on what is in the best interest of children three years of age and younger. Many proposals have been made in the legislature for reducing litigation on little ones by creating this “guideline” best interest law for them; however, because factors are so varied with young children, our lawmakers have declined to give us a guideline. Every case is different and, as you might suspect, every judge has a different opinion. Some judges move children to the SPO earlier than three years old, others craft a very specific visitation order considering each parent’s role in child care and who has provided the primary support for the child in the tender years.

When can the child decide if they don’t want to go visit for the weekend?

The answer to that question is there is NOT an age when the child can make a carte blanche decision about visits with the noncustodial parent. Social scientists would say the child’s wishes should be a factor but not controlling as this is too much pressure to put on a child. Parents should BOTH be sensitive to the child’s desires on visitation but encourage frequent and continuing contact with the non-custodial parent. At 12 years of age or older, if the parents are in litigation regarding visitation, the Court is required to interview the child in chambers if either parent requests the interview. There is no consensus in experts on child psychology as to whether this interview process is in the child’s best interest and the family code’s age of children who must be interviewed has varied between ages 10 and 14 during my years of practice. Current child development experts prefer a counselor testify who has developed a relationship with the child regarding the child’s express desires on visitation or access to avoid the pressure of litigation.