The “best interests of the child” is phrase that is at the center of any decision parents make for their children, and a key element that Courts throughout Texas weigh when evaluating family law cases involving children. Which parent sees the children when, where, and for how long aren’t just legal concepts but are core to the successful upbringing of a child. Often times though, clients come to our firm with concerns about visitation by the other parent, and in what situations visitation can be denied or limited. This post will address some of the more common issues we see.
What are the best interest of the child?
The Texas Supreme Court, in the case of Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), provided a list of factors to consider when determining what is in the best interest a child. These include:
- the child’s desires
- the child’s immediate and future physical and emotional needs
- any immediate and future physical and emotional danger to the child
- the parental abilities of each parent
- the programs available to assist parents who want to promote the best interests of their child
- the plans each parent has for the child
- the stability of the home or proposed home
- any actions or failures to act that may indicate that the parents don’t have a proper parent-child relationship, and
- any excuse the parents may have for those actions and failures to act
Is there a Court Order?
Your first task is to determine if you have a valid court order detailing possession and access for your children and to examine it. Generally speaking, no parent can violate a court order that outlines possession and access for a child. Doing so can come with serious penalties including, but not limited to, jail, fines, and payment of attorney’s fees. However, if there is a situation where following a court order would not be in the best interest of the child, parents can seek to modify their orders by filing a Suit Affecting the Parent Child Relationship (SAPCR). A SAPCR can address a wide range of issues including child support, visitation, otr even drug testing another parent who may be a danger to the child.
What if there is a Court Order for possession of our child, but the other parent has not paid me child support?
It may be counterintuitive and downright unfair, but just because the other parent is not paying their court ordered child support does not give the other parent the right to deny possession of a child. In fact, doing so would put the custodial parent in possible violation of a court’s orders, and subject to sanctions. If a parent is not abiding by their court ordered child support obligations, you do have options however. When a parent does not pay child support and the appropriate motions and procedures are followed, the non-paying parent can be fined, placed in jail, have wages garnished, and more.
What if my child does not want to go with the other parent?
In these situations, custodial parents are in a difficult situation. If a child refuses to go with the parent seeking their visitation time for whatever reason whether it is alienation, fear, anger, etc, the custodial parent must take care to not violate a court order. Understandably, custodial parents don’t want to force their children to do things they don’t want to do, don’t want to run afoul of the law, and want to protect their children.
Unfortunately, Courts in Texas can take wildly different approaches to resolving these situations. Sometimes courts will allow the child to make the decision on whether he/she will go with the other parent. Other times courts will lay the blame on the custodial parent and require compliance. These situations often turn on the facts and specific judge over your case. If you are faced with this issue, we recommend you get an attorney to advise you and approach the court to modify your orders.
Disclaimer: The legal information presented herein should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. General advice should always be tested by the particular facts and circumstances of each case. Legal advice is almost always case specific. Statues, ordinances, legal procedures, case law and rules of evidence are often revised.