visitation for young children under three years of age

A reader asked that I address Texas visitation for children under three years of age.  Obviously anytime you are in a divorce in Texas or other custody case, young children present an interesting issue.

The Texas Family Code, Section 153.254 addresses this topic.  The statute basically says that the Court shall enter an appropriate order for children under the age of three years old.  It goes on to say that it is presumed that when the child turns three years old a standard possession order will be entered.

What does this mean?  It means that the court is not bound by the rules for a standard possession order for Texas visitation when a child is under the age of three.  Does it mean that in every case with a child this young that the court will not order a standard possession order?  No.  The key phrase in the statute is an “order appropriate under the circumstances”.   There are many factors the court could consider in making this determination:

  • The age of the child
  • The emotional health of the child
  • The involvement of each parent in the child’s life
  • The abilities of each parent to properly care for the child
  • The length of time the parents have been separated
  • The distance between the parents if separated
  • The parent’s ability to work together on behalf of the child, and
  • A million other factors, or none of them

Dependent upon how these questions are answered will determine whether the court enters a special order for a child under the age of three.  In my practice I often see the courts modify only the summer possession of a standard possession order because of the extended period (up to thirty days if the parties live within one hundred miles of each other) the child would be away from one parent.  All other provisions for weekends and holidays remain the same.

As with all other child related divorce issues, the court has broad discretion to enter orders that are in the best interest of the child.  With a child under the age of three, the discretion of the court grows.  To know how a court will address each specific case is impossible, but hopefully this will shed a little light on the issue.

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18 Responses to visitation for young children under three years of age

  1. Victoria Garcia August 16, 2010 at 9:53 pm #

    Good to know; I’ll pass it on. I know a person or two who may, unfortunately, need to know at some point. My own personal experience with visitation for young children was rather on the extreme end of the spectrum, and therefore not of much assistance. I only had to allow access to my children “at such times and at such locations as determined by…[me]”.

  2. Debby Schauer October 15, 2010 at 3:26 pm #

    I was in need of information on visitation for kids under 2 yrs ( mine just turned one). This mediator doesn’t care how young he is she’s all for covering her ass over the mistakes she made in our first agreement giving the dad an overnight when we had NOT agreed to it and now she wants him to take our child up to 3 nights a week. He doesn’t see his son but every 17 days and that is of NO doing of mine! I beg him to come visit or take his son for a couple of hours, he won’t, but, he has hired an attorney to force me into giving my son to him for these overnights!!?? This ex has emotional problems (the first mediator filed papers stating such) it scares me to think of my small son scared out of his mind having to go with a stranger overnight. I am going to court for contempt Monday. I asked him when he wanted to get our son for his overnight and we agreed on a Sunday. He never showed up, never called, no text, to cancel. We sat and waited for the 30 minutes in the orders and considered it cancelled. Thursday he called and blamed me for him not having an overnight!!?? I asked why he never showed up, he said he couldn’t get off work. WHAT IS IN THE BEST INTEREST OF A ONE YEAR OLD? I know taking him away from his only care giver since birth for 15-17 hours and out of his own bed overnight in a strange place is NOT in any child’s best interest but he wants what HE wants and does not care what’s best for our son.

  3. Chris Schmiedeke October 20, 2010 at 11:43 am #

    Debby, the mediator cannot force you into any agreements. The only person that can make those kind of decisions without your approval is the judge. You need to take your issues before the court and explain your concerns to the judge. Do not let a mediator strong arm you into agreeing to something you do not agree with. Good luck.

  4. Disappointed in our system January 17, 2011 at 3:19 pm #

    I TOTALLY AGREE WITH Debby Schauer!! We are in the same situation, a TRUE PARENT make the child their number 1
    priority. They CAN NOT pick and choose when they feel or have time to be a father. But the courts dont see that all they care about is “father’s have rights” well what about the rights and best interest of the child??? THAT SHOULD BE THE COURTS PRIORITY.

  5. lisa April 17, 2011 at 3:16 pm #

    I am in the same situation!! the father has spent 10-15 HOURS/month with my 3 year old and about 3 hours/month with my 1 year old.
    now he wants an overnight with my 3 year old who is totally confused since he moved out a few months ago abandoning us abruptly.

    has anyone had any luck conveying to the court that it is not in the best interest of the child when the father wants visitation at his convenience after making his children the 3rd of 4th priority of his?
    thank you

  6. misty g August 6, 2011 at 1:21 am #

    The courts do Not care about the well being of any child. I have lived through hell for the last 1yr and half.My ex has spo and the papers read 30 days summer in 4 sessions with 5 days between. Is that with 1st 3rd and 5th weekend to? when do i get her? She is ONLY 3 yrs old and abandoned her at 6 months. I have depleated my savings on 2 attorneys trying to protect her. This is insane. They MAKE my baby call his new wife mom> when does it stop and how can i make it stop??????The courts act like it is a joke it is the life of an innocent child. He works and the wife does too i have no clue who watches her. I do not leave my kids with no one ever, not even for work. Please send me to the right attorney!!!!!!!!!!!!!!!

  7. misty g August 6, 2011 at 1:26 am #

    Isnt there a first right of refusal law? What rights does a step parent have over the mother? If the dad does not want to be a dad and spend time with his child why cant she stay with her mom instead of the step mom? or whomever?

  8. Matt May 7, 2012 at 8:48 am #

    Is a Father not entitled to visit on father’s day with child under 3?

  9. Chris Schmiedeke May 17, 2012 at 12:47 pm #

    Depends on what your order says. The order controls visitation.

  10. sidney jones July 7, 2012 at 9:59 am #

    Ok I have a 1 year old who has never seen her father and has only helped a little in the finacial department. he is in the military and I am wondering if they would grant him any overnight stays? Any information on this would really help.

  11. audrey davison December 30, 2012 at 4:04 pm #

    What about an unmarried father, who has been involved, signed his paternity, was at the birth, has been to visit every week (on his days off) since the baby’s birth and pays monthly 20%. He and the mom are trying to work out a relationship but he wants to file on himslef for court ordered child support/visitation but is afraid he will get no visitation time since the baby is under 1 year.

  12. Chris Schmiedeke January 8, 2013 at 9:30 am #

    That would all depend on his involvement. If he has had the child for visitation, the Court will not change that.

  13. Rochi June 20, 2013 at 12:44 pm #

    I wonder if anyone has an example of an ideal schedule time to visit for the father who has not the custody of a girl of 10 months please.

  14. Rusheal December 20, 2013 at 2:22 pm #

    (maybe this will shead a little light)
    I am the mother(Custodial Parent) of a 8month old little girl.. Her father(non custodial) visitation consist of 1st, 3rd and 5th Satuday of everymonth from 1pm-5pm supervised by me. He has to do 16 saturdays if he misses one then he has to start over. But his visitation consist of 3 phases. 16 saturdays of Supervised by me, 16 saturday of unsupervised, 16 satudays of one overnight stay (Friday -Saturday). Then my daughter will be close to 3 and he will get full weekend visits (friday-sunday).

  15. Misty April 3, 2016 at 2:34 pm #

    @rochi or anyone.. what state are u in . I am just now going thru this and that was my understanding now that everything is said and done. The have only given him 1 month of supervised . 1 month worhout. Then straight-forward 3 days of overnight. I’m tereified. My 20 MONTH old autism child can not handle that stress r change in schedule or environment and it seems nobody will listen to me. . . His father has seen him a total of 4 times. Each visit has been documented since borth. Which consists of 1 visit for 15 min during the 2 1/2 months stay in the nicu at birth… somebody ..anybody. . Any help r advice please.

  16. Erica June 11, 2016 at 10:34 pm #

    My son just turned 2 and this was his first weekend. It was emotional for him. I facetime with him and he was crying wanting to come home. As much as I wanted to go get his father didn’t allow it. Why would the judge allow him to stay over and now he is going to stay all July. Why?

  17. Michelle September 3, 2016 at 11:00 am #

    My child is only 3 weeks old. The father lives in another state. He seems to think that he is going to get as much time as he wants and be able to take my baby out of state. I was told that Texas has a minimum visitation law and that the child would not be able to leave the state until 3 years of age and he would have to travel to Texas if he wanted to see her up until then. Can you confirm if this is valid or not?

  18. LBR September 19, 2016 at 7:26 am #

    My daughter is 21 weeks old. She is also a breastfed baby. During a second temporary hearing the judge ordered me to hand over my daughter for 2 over night visits per month and 2, 2 hour visits per week. The judge also insisted that I supplement my breast milk for formula if I can not pump enough to send with her for a 24 hour period! My daughter went for her first 2 hour visit last Thursday. She came back glassed over and NOT herself! The next day I brought her to daycare and she was still in a daze. I told her sitter what had happen and to watch her. I called to check on her through out the morning and she was very uneasy and restless. Not until 12 pm did my daughter start acting like her normal self. I now have to give her up for an over night visit and I am terrified of how this is going to effect her.

    I have asked to file a complaint against the judge due to the fact that he stated on the record that a family friend from the opposing side contacted him to compromise the case (he is a Justice of the Peace). Also that it was evident that the judge was VERY BIAS. How is it that you depend on the justice system to protect your child and the judge ends up doing what is in the worst interest of the child? How can judges continue to get away with things like this?

    We had a parenting facilitator that supposedly was compromised as well. When put on the stand she lied about everything that was stated in my visits with her.

    Also note that there was evidence of the father having alcohol issues along with his parents.

    How can I defend my daughters well being without having the judge retaliate against me?

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