Possession and Visitation

You will hear in various forms “if you share 50/50 visitation with the other parent, you cannot receive child support / you won’t have to pay child support.” This statement is not necessarily true. If the parents have a 50/50 possession schedule of the child, and both parents earn roughly the same income as each other, then normally in this case there would be no child support going from one parent to the other. However, in the case where one parent makes a significantly higher income than the other parent, there is the possibility of the court ordering the parent with the higher income to pay some form of support to the other parent with the lower income.

When there is a child, there is a potential for a child custody case. If there’s a divorce and a child, custody must be determined. If the parents decided to not marry and now break up, custody must be determined. Issues of child custody can also arise if you’re a close family member (grandparent, aunt, uncle etc.), a friend caring for a child, or even a foster parent. At Ryan Law, we love child custody issues and cases. We are all parents – we all know that the relationship with our children is what is most important.

The term “custody” covers many issues – does the child live primarily with one parent? Will the child split time evenly between the two parents? Which parent or person gets to make counseling decisions – should both parents must agree on medical decisions? What about where the child will attend school? What visitation and possession schedule will each parent have? What if both parents are incarcerated? What if one parent is incarcerated? All these issues fall under the term “custody.” In the legal world, the term “Suit affecting the parent-child relationship” is what is normally used when addressing these issues.

The best answer to this question is – the parents of the child. If the parties are married, either party can file a divorce or a child custody suit involving the child. Even if the parents aren’t married, either parent can file a child custody suit. Other people who can bring a custody suit are grandparents, great grandparents, aunts, and uncles and even siblings who are adults. However, for non-parents to have the ability to file a child custody suit, there has to be special circumstances, such as:

• The child has lived primarily with the non-parent for over 6 months, or

• Both parents aren’t safe to care for the child, or

• Both parents agree that the non-parent can have custody or visitation periods of the child.

Normally a custody suit is filed where the child has resided for at least 6 months. Or, if the parties are married, where the parties have resided for at least 3 months (provided they have resided in the state of Texas for at least the preceding 6 months).

When a custody suit is filed, you potentially have several different ways you can proceed. A lot depends on the facts of your case. If you and the other parent agree on immediate visitation and other issues regarding the child, the attorneys in the case can prepare a “temporary order” which is an order that governs your actions and behaviors as well as those of the other parent when it comes to the child. Actions such as visitation, rights and duties, and child support.

If you and the other parent don’t agree, then you can appear in front of the Court and ask for temporary orders – and the court will listen to the evidence and arguments from both parties and then make a ruling. This ruling will cover visitation, possession, child support and any other issues that you and the other parent don’t agree upon. This temporary order will continue until a final order is entered.

At some point during your case, you might need to ask questions of the other parent or get documents from him or her. If the other parent won’t voluntarily give these items over to you, your attorney can send a formal request for documents and answers from the other parent, and the other parent must answer these questions within a certain time period. Discovery is very useful in a contested case where both parents are asking for primary custody of the child. You can ask for text messages, pictures, social media accounts, the reason why the other parent wants primary custody etc. You can ask for a list of witnesses the other parent might call at a future hearing. The discovery process can be expensive however, so it is a good conversation to have with your attorney as to whether you need discovery or not. In a normal case, if you choose to send formal discovery requests to the other parent, that parent most likely will send discovery questions to you.

At some point, whether there are temporary orders or not, you will want to finalize the custody case. A lot can occur between the filing of the custody case and finalization; you can have the temporary orders hearing, you can conduct discovery, and you can then ask to try to settle your case out of court. Mediation and informal settlement conferences are a good option for cases that aren’t highly contested. However, these out of court methods are all based on the other parent’s agreement to a final settlement. If the other parent doesn’t agree to a final settlement, then the only option to finalize your case is to set a final hearing in front of the Judge. This final hearing cannot occur without giving the other parent at least 45 days’ notice of the final hearing. Once notice is given to the other side, you will want to work on getting your evidence together for the final hearing. This evidence could include witnesses you want to testify on your behalf, pictures, text messages, social media posts, recordings etc. You will want to meet with your attorney if you have one to go over testimony and what exactly you want to ask the Court to do at the hearing. The length of a final hearing can vary greatly depending on your case and the evidence.

A parent has the right to request that instead of having a final hearing in front of a Judge, to have a final hearing in front of a jury. However, the jury can only decide the following issues:

• Which parent gets primary custody of the child.

• No parent gets primary custody of the child but instead the child’s residence should be restricted to a certain geographic area,

• What geographic area (if any) is the child restricted; and

• Whether the parents are appointed joint managing conservators of the child or will one parent be appointed sole-managing conservator of the child.

After a jury decides the issues above, then the Judge will decide the issues of visitation, possession, and child support. Jury trials are very expensive and relatively rare.