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Episode 6 - Play Nice or The Judge Could Bench You: Possession Orders for Children Under Three


Episode 6 - Play Nice or The Judge Could Bench You: Possession Orders for Children Under Three

Welcome to the top Texas Lawyers podcast. This podcast is brought to you by the law firm Abercrombie and Sanchez PLLC.

Your hosts are Brian Abercrombie and Samuel Sanchez. Brian has been practicing law for 18 years and his board certified that sort of legal specialization in the area of family law. Sam has been practicing for 13 years, is licensed in both Texas and Florida, and is a certified mediator. This podcast is for informational purposes only and all views are the opinion of the hosts. It's not designed to provide legal advice for your particular legal matter, and it should not replace the advice of competent counsel. Welcome. And we hope you enjoy the top Texas Lawyers podcast.

Good afternoon and welcome to the top Texas Lawyers podcast. I'm Brian Abercrombie, and with me as always is my Doc Holiday to my whitener, Sam Sanchez. I'm your huckleberry. So happy holidays, Sam.

Wanted to talk about something going on in the holidays, I guess celebrity divorces in the news I got it looks like the Channing Tatum and the Jenna one.

Senator one. Yes. I think that marriage is coming to a ill-fated conclusion. And it looks like that's not going to be I'm not going to be walking off into the sunset peacefully now known as the.

Then understand they're going to have a lot of problems really on the conservatorship or custody side, because from what I understand is like they initially separated, which California is obviously a completely different animal than either Texas, Florida.

But the possession schedule that they first started off with because of the age of the child was very limited. And so I think that Mr. Tatum is really trying to go in and open that up, which could be a problem.

Yeah. Which is a kind of a, you know, kind of a similar topic to what we're going to talk about today.

I mean, we're going to talk about, you know, the possession schedules. We've talked previously about holiday possession schedules and previous episodes. We've talked about standard possession orders. But we're going to talk today about possession orders for children under the age of three, because a lot of people don't don't understand kind of how that works and how that works in Texas and what kind of discretion the court has when dealing with the child under the age of three.

So just generally speaking, Texas is a joint managing conservative state. So unless you can prove otherwise, both parents are going to be joint managing conservators, which means they're going to share, you know, most of the rights and duties pertaining to the kids.

One parent typically will have the right to determine the primary residence, but that's a little bit different than what the possession schedule is. So just because you're sharing rights, you know, sharing that right to make medical decisions or sharing that right to make educational decisions, that's totally different than the possession order. So when you're talking about a possession order, you really have to look at the age of the child and some things like that. So I'll just start off briefly and then, Sam, you can jump in. Just talking about what the Texas Family Code says about children under the age of three. So basically there's a Section 153 of the Texas Family Code, and it basically gives the judge very, very broad discretion. It just says the courts will render an order and order appropriate under the circumstances for the possession of a child less than three years of age. And then they have it. There's a number of different factors which we can talk about that the court can take into consideration.

But basically, it gives the court very, very wide discretion on entering a possession schedule.

So, yeah, and it can it can raise a lot of really extreme concerns for parents as they go through that process. You know, hopefully most parents don't. But if you do, you find yourself in that situation. The last thing you want is to kind of wonder what time with your child is going to look like and what is the foundational basis of evidence that the court is going to consider. These are always things that are pretty terrifying. When you talk to new parent, first thing you think of, as you know, both you and I are parents. Brian, with the kids are small. The last thing you want to do is think about being away from them. But in this context, you're going to have to split time. And of course, discretion is so broad, so wide open and they can consider so many things. I think it's definitely worth our time to just kind of discuss a little bit and kind of give our listeners a little bit of insight.

Let's talk a little bit about let's talk about young couple. Let's talk about a young couple, young couple A and B, and let's say they're under now. Let's say they're under 20, 25 years of age. Let's say then they have they have a baby. They're either married or not married. But let's say that let's say they decide to part ways or get a divorce. Let's say when this when this child is, you know, an infant, what does that look like? I mean, you've got you've got a mom, of course, that may or may not be, you know, breastfeeding some of those other factors to take into consideration, you know, what the needs of the child are. What does that look like for a dad?

Yeah. I mean, you know, it's complicated, obviously. And that's not to say there's a ton of research out there now, Brian, that says specifically, you know, dads are just important to the formation and early years of the child's overall well-being as moms are. But there's a physical part to that that dads just can't match. One of those is if the child is nursing. I mean, if that is the primary source of nutrition for the child, then you can understand that a court is going to take that into consideration when they're dividing up, you know, time. And in that, you've got to understand to infant children, they you know, they're eating every three, four hours. So how does that work? You know, it's not like that. Can you know, sometimes depending on how mom is doing, maybe she can. Reduced enough sustenance for there to be bottles to kind of make it portable for longer periods of time, but most of the time when a child is under the age of one, especially under six months, a court is going to give very limited periods of time. Now, this can be worse, too, or actually made worse. If your relationship with the other side. So the relationship between father and mother is bad, right? They can't be in the same room because they fight like cats and dogs. They can't agree that the sky is blue and dirt is brown. And so in that situation, the last thing that you really want is for that to develop because it can really hamper dad's ability to spend time with his child in those early formative years.

So let's talk about Timmy. They're not trying to punish dads in these situations. I have to talk to clients all the time about that. And it's not they're not trying to punish dads. They're looking at it from a developmental standpoint, from the from the from the side of the mother bonding with the child, correct?

Absolutely. Absolutely. We know that those are critical moments in time for a child for their ability to bond with their mother for that. You know that that is absolutely critical to what you want, what every father wants, which is a happy and healthy child.

In that, though, I mean, if you can work out a decent relationship with between the parties, then a lot of times you can do very creative things, which is what a judge a lot of times will try to do, even though they're not necessarily obligated to be creative. This is one of those scenarios in Texas at least, where under the parameters of the law, the court can really contemplate any fact based scenario to create a possesions schedule. They could say, hey, every three hours, every two days, dad's gonna get time, you know. You know, from 12:00 until 8:00, you get two periods of possession. They can also look at it and say, no, we're just going to do time. That means maybe a Wednesday period of possession, the Saturday period of possession and the Sunday period of possession for a couple of hours.

So what has you so what have you seen that that dads are getting, let's say, for children under the age of one? I mean, what what what what kind of judges do I see?

A lot of judges really look at a three to four hour period of time. No more than three times a week. So they'll usually pick a midweek period of possession. So either Tuesday, Wednesday or Thursday and say, based on your schedule, I'm gonna give you some mid-week possession. You can come in. You know, maybe it's after dinner time or after the client gets off of work.

Spend some time with a child in between feedings, maybe even participate in feedings, which is a big part, too, because what we've come to understand these studies is not just moms. Time to bond with that child and feed that child. It's really dads time, too. So they're really cognizant of that more and more. And then usually on the weekends, depending on if you're a weekend, you know, if you're a Monday to Friday guy and all you have is weekends and courts really look at trying to give you some broken up periods of possession, maybe four hours on a Saturday morning, then four hours on Sunday afternoon. You know, that's restrictive. Moms hate it because moms like I can't do anything do those weekends with dads because they're like, yeah, you're spending all this time with my child that I don't get. So the courts try to strike a balance. A lot of times. And that's what I've seen pretty regularly.

And what the code. You know, what the code talks about is, you know, all of these different factors that can impact this child under the age of three. So one of which being the caregiving provides to the child before and during the current suit. So who's providing the care? What kind of care that is what kind of needs the child has? You've got the effect on the part on the child that that may result from separation from either party.

So if if the child is super attached to mom, you know that that may have an impact on, you know, that maybe a weaning off process and things like that and the availability of the parties as caregivers and the willingness of the parties to care for the child. So, you know, if dad really doesn't have a place to take the child or mom doesn't have a place to take the child, that's going to impact to physical and medical needs. Behavioral needs, all of those sorts of things.

Absolutely. I tell clients over and over again as they go through this process, Brian, is I have a plan. You know, you have to really contemplate life now that you're not going to be together. You know, what does that look like? What is your support network look like? You know, to your point, where are you going to live? Who's the pediatrician? How far are you away? You know, if you're going to be using daycare for any periods and point in time, like who's scoped it out? Do you know the procedures? You know, sign in, sign out, all those kinds of things, because what you what a judge really wants to feel as a parent is engaged. And on top of things.

So if you're ready and what I've learned oftentimes tell my young dad. I mean, if you're a young dad and this is your first you know, your first go around at the parenting at the parenting train, I would tell you that if you're you know, if you're gonna be a single dad, I would tell you that you do everything possible to make your your house a home for a child.

You don't want to be living in a, you know, in a fraternity house. Nothing gets fraternity houses about this. Not a place to bring a child. You don't want to be living in a bachelor pad necessarily.

You know, safety gates, all the plugs, all those kinds of things that you want to make sure are child appropriate. But as an infant. On the flip side, I always tell moms, young moms, like, look, you know, of all the people in the entire world, this is the fish that you pulled out of the sea to have a child with. And so in that 18 years is a long time. And I would love to tell people that the end of 18 years, while the order no longer exists. Neither does a relationship. But that's just not the way it works. There's gonna be graduations, there's going to be weddings, there's going to be christening. So really start to try to develop a relationship even if you can't stay in.

And those are two separate things a lot of people kind of mix the two and say, no, that's not how I want to think of it, but it's absolutely two different considerations. What's best for your child?

And one thing I've seen a lot of pain, a lot of judges do. And the one thing that I would encourage a lot of parents to do is go down and take a parenting class. If you're if you're young, especially if you're a young parent, there's nothing in the world wrong with going to getting some help again, some training on how to take care of a you know, how to take care of an MP.

There used to be a really good a really good course called bottles, two blocks that would help young dads or young parents, young parents really navigate the ins and outs as a first aid or CPR class for an infant, you know, doesn't doesn't necessarily hurt because.

But what I've seen judges do and Sam, you've probably seen the same thing, is judges will. I'm you know, maybe it's three to four hours a week when the child is an infant, but normally that that time does what's called a stair step.

And what that stair step does is as the child ages and gets a little bit older and a little bit more mature and a little bit more developed, the non-custodial parent gets more and more time and it works up to a standard possession order. Now, some judges will do a standard possession order or to some judges will do it at once. Some judges will do it at three. You know, it depends on your judge. It depends on your court. That's that's why these things are kind of ripe grounds for litigation, because you don't you don't know what court you're necessarily going to be and you don't know what the judge's attitude may be towards a child under the age of three. But generally speaking, you know, the non-custodial parent is going to get stair step time, which means time building up to a possession schedule, you know, during the months before that child turns 3.

Oh, absolutely. That's exactly what I see, Brian, in both of my markets. And I would tell you that, you know, the thing about judges, you know, they're still just people in robes.

Right. And so it's a tough decision. And so you want to help the judge as much as you possibly can on either side of that equation. You want to make sure to our point, to really have a plan of how you intend to parent. But to your point about education, self education, you know that your first state certified that you have an understanding of, you know, if your child is on formula or being breastfed, how long those bottles last.

You know what the eating schedule looks like? What that child, if they have any allergies.

We know all these kinds of things are going to be very relevant to a court's consideration because they're so broad discretion in what they decide and how they decide it. You really want to do your best to try to put yourself in the best light possible, but also help the judge create a better order for you.

And not only that. I mean, honestly, it's going to show the other parent, hey, this person is really trying to be a mom or trying to be a dad.

You know, look at the look at the steps they're willing to take to make sure that this child is well taken care of when they're outside of my first my first boss was was a retired judge.

And he says he used to tell me that you're never going to find a better babysitter typically than the other parent. So very smart. Be together. I mean, granted, obviously, there's obviously sometimes extenuating circumstances. But generally speaking, no one's gonna love that child like the other parents.

Very true.

One would hope if you've got if you've got two pretty normal people, you know, without there being no issues coming into play, you know, you really want to try to work together, to Sam's point earlier, you know, to get a workable schedule and to get something that way, because you've got a lot of years of dealing with one another.

Oh, absolutely. And not only that, there's two considerations that that kind of naturally ties into that I always want clients to contemplate as they find themselves in these kind of situations.

Number one is that people always want to say, well, you know, what am I going to have to pay child support?

Well, typically, if you're not going to be the parent with the majority of time, you're going to be court ordered to pay child support. And in this particular instance, because it's not along at least in Texas, along a standard possession schedule, you got to understand that that means that the court can also vary from the guidelines in child support calculations, because more time, many more effort, more sustenance, more potential expense is going to be passed on to the parent with the majority of time. So a lot of times, you know, young dads in that situation look at it and go, well, I thought my child support was supposed to be this dollar amount, but the judge went beyond it. Well, they can consider a lot of things in relation to creating that type of an obligation. Second part of that is a right of first refusal. And you touched on it for just a second, Brian. Right of first refusal is kind of a touchy subject. But what it does is ensure the very scenario that you just discussed, that if there's gonna be a baby sitter, the best and first baby sitter should always be the other parent. And, you know, sometimes when, you know, separations like Channing Tatum and Jenna do, separation is supposedly contentious. They can't agree. They don't want time.

You know, the child to spend time with the other parent because they have concerns. Well, the right of first refusal is almost like a guarantee. It's a court ordered requirement that the other party offer that time. If they can't take it to the other parent first before going to grandma, before going to a baby sitter or the neighbor or whatever it may be. And that can help stem and and eliminate a lot of potential arguments and litigation.

If you're something that you think is going to be important to maximizing time.

Let's talk about the flip side of that. Let's say you're a mom and you have the primary, you know, primary time with this child and the child is under the age of three. You know, obviously, there's a lot of concerns about where dads live in who dads live and with who dads hanging around. You know what's going on at dad's house? You know, what kinds of things do you need to be looking for as a mom to try to make sure that your, you know, your child is going to be safe?

Because obviously, you know, the year, those tender years, you know, the.

Well, there's not communicating what's wrong or what's going on and what happens at the other parents house.

So what kind of steps can the kid that person take to make sure that their child is going to be safe when they go over to dad's house?

You know, I think a big part of that, Brian, is always setting very clear expectations from a mom's perspective as a young mom, a first mom really wants to go out there and be able to say, these are my minimum expectations of you as a parent. And these are the concerns that come along with caring for our child. They know it because they do it on a regular basis from the moment the child is born.

And so they really have to kind of do a really good job of spelling those things out, because the worst thing that you can have is a young mom in that position is expectations without communication, because inevitably, one that's very likely going to end up in court and to a judge will always look you square in the eye and say, well, how's he supposed to not do that? If you never told him. So there's no point in hiding the ball at that point. You want to wear a very clean offense. Right. You want to be able to say this is everyone's role. This is how we do things. So we are commonplace. Whether that child is with mom or whether that child is with dad. And then subsequent to periods of possession, I always tell parents, I don't want you to sit down and, you know, go crazy, but really observe your child, spend time inspecting them, you know, are they clean? Are their clothes clean? Have they developed the diaper rash? Well, that's usually indicative of somebody not changing their diaper on a regular basis. Not always, but sometimes. And so, you know, you know, what does. Know? Do they come back fussy or are they very sleepy? Do you know, does it did take them a couple hours to even kind of come to some maybe potentially somebody is giving them. Hopefully not. But Benadryl, you know, these are the kinds of things that as a parent, if you don't trust the other side, then you really have to do your part, your due diligence and inspecting your child and making sure that they're safe. And if you have any concerns, any concerns that you feel are legitimate. Don't hesitate to contact counsel.

Discuss what the options are. And if it's necessary to protect that child, get in the court as quickly as you can ensure their safety.

And like I said, you can always take these issues to courts, because I can tell you from personal experience that judges number one priority is going to be the health, safety and welfare of a child. They're going to make sure that that child is safe first and foremost before they talk about anything else, before dads rights, before moms rights, before any other rights come into play. They're talking about is that child safe?

So if you if you have a concern about health or safety, you know, and you can't get it resolved. I would tell you that the courthouse is the option that you go to at that point. But I would also say that you may not get along with mother in law or you may not get along with with the sister or mom or a dad's family or whatever.

But those those people can be good allies and good and good help when it comes to your child having to go spend the night at dad's house and environment they're unfamiliar with because a lot of a lot of times moms, obviously we're parents at one time, you know, grandmas make pretty good babysitters and so do sisters and aunts and uncles and stuff like that. And a lot of cases.

So the more family support that's around while you when your child if your child has to go off to to dad's house and you're going to see the child for a day or so, the more family support that's around. I think you can feel a little bit more comfortable, you know, absent, you know, ridiculous circumstances that oftentimes come up.

But I'm I'm talking about let's say let's talk about normal family age where, you know, moms are where husband has a sister, sisters normal sister has a couple of kids. Grandma is normal grandpas, Norm, all of those kinds of things. I mean, having extended family around can be helpful. It can also help the child bond with that side of the family, something that is crucial in the later years.

Absolutely. You know, they always say, you know, everybody's heard that saying about it takes a village to raise a child. It really does. That network is going to be helpful. You know, many hands make light work. So a lot of times in that situation, sharing the blessings and the burdens of raising that child is a good way to bring families together. I mean, even if you're not going to have a family together with your ex spouse or ex, you know, counterpart in that situation, at least you know that in those co-parenting situations or opportunities is just another set of eyes, another set of hands to ensure that child's safety and development, because obviously at least, grandma, we know that at least grandma has raised one kid healthy and successfully.

Right. Well, I one time clearly somebody thought that child was pretty good. So, you know, I mean. Right. And then, you know, the same thing on your side. If you're if you're the mom, I mean, getting your family support and getting help from some family sometimes will help, too. I mean, that will help. Let's say that you're in a situation where you can't be in the room with the other person. I mean, it's just not not feasible. There's a lot of different types of relationships. You know, so maybe it be good to have your mom sit in and be a Beba.

Be a kind of a sitter or supervisor and a possession schedule or an and brother or a sister or or something like that. So having your your family involved can be helpful as well. Like you said, many, many hands make light work.

Well, I would tell you along those lines, Bryan, what I try to preach to clients and I would encourage our listeners, if this is a situation you find yourself in, is try to be understanding. I would love to tell you that kids come with an operator's manual that you can just look up on page 3 exactly how to handle every situation. But they don't. And in that situation, you know, a lot of times a kid comes back with a scrape and instantly somebody believes that either dad or mom is neglecting the child or abusing the child. And that may not be the case because that child might be rambunctious or may just be learning how to crawl. And, you know, those things are going to occur. Bruises, scrapes, scratches, a puppy coming up, a cat unknown, a child who knows what it could be, a toy. And so in that situation, you want to be diligent, but you also want to have a level of understanding of what's happening with that other parent. You know them best. You chose them. So spend some time really kind of trying to understand the situation that you're finding yourselves in. But again, if it's a true concern, it's something that you believe is in the child's best interest to protect that child. Don't wait on acting.

And that would tell you that toddlers and you know, most people know that toddlers are in the exploratory phase of life. I mean, they're going and they're crawling around. They're picking up stuff. They're getting into stuff. They're there. They're experiencing the world. They're learning about the world. So those kinds of things are going to happen. So you have to you know, you want to make sure that your child is safe. No one but you have to account for. There are going to be probably some bumps and bruises along the way.

I always try and tell parents Will almost same lines, Brian. Right. You're young or even if you're not young, you're having a child together.

You want to be on your best behavior when you have that time, you know, be be a role model for the child at all times, because I guarantee you the second that you're not the other side is absolutely going to be prepared and willing to take you to court and utilize that against you to modify, change or even potentially take those rights away from you.

And I mean, if you've ever heard that it's time to grow up, whenever you have a newborn and you have a child under the age of three, it is time that it's time to grow up and it's time to put the childish stuff behind you. And unfortunately, that's that's the way of the world nowadays. You've got it.

When you have a child, the raise of your own, you've got to put, you know, put your needs to the backseat sometimes. And that may mean biting your tongue and getting along with the other person for the benefit of that child, just for the short amount of time that that that you guys are together. But I would tell you that as this child gets older, let's talk about children and go. Going into one years old or two years old. But oftentimes you're you're not going to look at. You're not going to get situations where where the judges are just saying three hours here or three hours there, they're going to start saying, OK, eight hours or they're gonna stay overnight on Saturday. And they say overnight on Friday and they get one overnight instead of two. They may give, you know, because when you get to the standard possession or you're talking about first, third and fourth weekend, you're talking about three, you know, three to four overnights.


Children between 1 and 3, they're probably going to get overnight time at some point. I mean, there's usually a rather short a shorter ramp up time when the child does, the child gets older. So you've got to start being prepared for those overnights to happen.

And like you said, Sam, you know, inspecting your child, making sure your child's going over there with everything that they need. Making sure that, you know, if there's a list that needs to be given to the other parents and this is this is the routine you want to do that don't just because you don't like this, you don't like your ex-husband or you don't like your ex-wife, don't just say, here's the kid. Good. Lots of luck. I mean, the best thing to do for the benefit of that child is, OK, if you have a routine, tell him what the routine is. Keeping children consistent makes for it makes it easier on the child.

The last thing you want to do is behave like, you know, like a fool. Because what will end up happening is that foolish behavior will become fodder for somebody to be able to use against you in court. And the last situation you want to be in, because judges have the patience, you know, a patient's level that's typically very short is to come into court and be painted as the parent who is acting in that way, behaving in that way.

You know, moms will come in and say, well, you know, I hate his gods and he's got a new girlfriend and I don't ever want my child to go over there. Well, that's never going to happen. I mean, he's gonna be entitled to be a dad unless he's done really bad things.

And so in that scenario, if you come in and start talking about how these terrible ways you didn't send over the medication, you send over that schedule, it gives the other side footy, it makes or gives the judge the opportunity to look at you and say, you know what? Between the two of you, I feel that one is an adult and one is not. And I'm going to definitely side with that other than the other party. So you don't understand that what you do as a young parent, whether you be old or young with a young child, the way you behave towards one another is very relevant only to the courtroom, but also to that child and how they're going to mature and continue to develop.

So, you know, really try to take the high road, if you can, because if not in court most of the time, and I would tell you that if there's ever a time to take the high road, it is when you when you divorce or you are separated or you are no longer together with young children, because like we talked about before, there is a lot of years left of dealing with that other person. And there is going to be soccer games and Girl Scouts or Boy Scouts or Cub Scouts or dance recitals or football or whatever else there is.

As this child grows up, there's going to be band recitals, acting classes. I mean, all the different things, the parent teacher conferences, all the different things that kids are involved in as they grow up and you're gonna be dealing with that other person. And the last thing you want is for it to be uncomfortable for your child because you can't stand to be in the same room with the other person. So, you know, the cautionary tale is try to try to get along as best you can. Sometimes that's not possible. And there's there's always those instances.

But the more adult you can be about in a difficult situation, the better off you're gonna be all the way around.

Well, I think that does it for us this week. Sam, I want to wish you and your family safe and happy holiday season this year and wishing you guys all the best. Back to you, sir.

Back to you, please. My best to the family.

And I look forward to the region.

I wish you guys wish you guys of the best for a safe and happy, prosperous New Year.

We'll be bringing much more and much more podcast content for you guys in the field. Guys like what you hear. Please feel free to leave us a review on your podcast, whether it's Apple or Android or whatever else you're using that. Give us a give us a review. Tell us what you think. We are constantly looking for feedback and we certainly want to make this thing better. And we certainly want to make, you know, bring you topics that are relevant.

So with that, I wish you guys all the best. And I thank you and have a merry Christmas and a safe and happy New Year.

Feliz Navidad. You can read well on you.

Thank you for listening, and we hope you enjoyed the Top Texas Lawyers Podcast. If you'd like to schedule a consultation with either Bryan or Sam, please call 1-888-981-7509. Or visit us on the web at Once again, that's Thank you very much.

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