The subject-matter and scope of this presentation resulted from a fairly specific concern over cases that include problematic relationships between a parent and a child that have not improved by the time of final trial or final resolution of the suit. Where it is determined that a parent’s continued relationship with a child is in the child’s best interest and should be sustained despite the parent’s limitations, crafting the possession order can pose a difficult task for the court and the attorneys involved. Sometimes the difficulty in the relationship is the result of intentionally harmful activity by the parent and sometimes it is merely due to a prolonged estrangement without any kind of parental fault. What these cases have in common is the challenge of determining how much contact between parent and child is appropriate given the nature of the particular problem and what conditions upon possession, if any, should be included.
The problem identified here is not the same in a temporary orders hearing as in a final trial on the merits. At the juncture of the typical temporary orders hearing, the court can decide to monitor the situation while putting in place safeguards that might include limited possession, the appointment of mental health professionals, the appointment of a child advocate, or any combination of the foregoing. In addition, in many cases, the court can count to some degree on continuation of attorney attention to important matters. The use of such a structure in temporary orders can often result in well-thought-out measures to address problem parent-child relationships by the time of trial. There are, however, cases that reach final trial without having resolved persistent problems.
There is no one-size-fits-all possession order that will be most appropriate for every problem relationship. Constant common-sense evaluation of the case should develop practical solutions and proposals for the court. These proposals should be created by filtering the facts through the statutes and case law precedents. The content choices for this paper begin with a listing of the Texas Family Code provisions most likely bearing upon possession or possession related issues. Then, an analysis of appellate cases construing non-standard possession orders is undertaken. Finally, some remaining questions are posed with some possible answers.
The fact patterns that commonly present the problem can be roughly approximated as follows:
• Drug or alcohol abuse/addiction
• Mental incapacity/limitations
• Family violence: parent to parent
• Family violence: parent to child
• Parental alienation
• International child abduction
• Parental incarceration
• Voluntary estrangement/shrinking parent
• Extremely non-standard work hours
• Long distances between parents