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.