My Child is Under Three, How Does A Possession Order Apply?

If you have a child under the age of three, Texas law says that the Standard Possession Order might not be in your child’s best interest. Why? Because Texas believes that newborn children are at a “tender age” and require substantial care. This comes from the Tender Age Doctrine which states that extended or long visitation with the non-primary parent may hinder a child’s psychological development.

Ultimately the Tender Age Doctrine believes that the primary parent should have more visitation with the child and that the other parent should have several consistent, short visits with the child. This does not mean, however, that the primary parent gets to oversee all decisions related to the child.

Texas law separates children’s issues into three distinct categories:

• Conservatorship: The decision making ability for the child
• Possession and Access: Who gets to see the child, when, and on what terms
• Child Support: Which parent will pay support and at what amount

If your child is under three and you have questions regarding a possession schedule, call (832) 781-0320 to speak with Hunt Law Firm today.

On This Page:

• What Factors Does The Court Consider When Creating a Possession Schedule for Children Under Three?
• Considerations When Crafting a Possession Schedule
• Step-up Schedules for the Non-Primary Parent
  • Examples of Step-Up Possession Schedules for a Child Under Three
• What Other Agreements Do I Need to Consider?
  • What Will Holiday Possession Look Like?
    • Example of a Holiday Possession Schedule for a Child Under Three

As mentioned above, the Texas Family Code has stated that it is presumed that the Standard Possession Order is not in a child’s best interest if that child is under three. What the Texas Family Code doesn’t do, however, is give us a schedule for a child under the age of three. So where does that leave us?

The law states that the Court shall “render an order appropriate under the circumstances” and provides us with factors that the Court will consider:

1. The caregiving provided to the child before and during the current suit;
2. The effect on the child that may result from separation from either party;
3. The availability of the parties as caregivers and the willingness of the parties to personally care for the child;
4. The physical, medical, behavioral, and developmental needs of the child;
5. The physical, medical, emotional, economic, and social conditions of the parties;
6. The impact and influence of individuals, other than the parties, who will be present during periods of possession;
7. The presence of siblings during periods of possession;
8. The child’s need to develop healthy attachments to both parents;
9. The child’s need for continuity of routine;
10. The location and proximity of the residences of the parties; and
11. The need for a temporary possession schedule that incrementally shifts to the schedule provided in the prospective order under Subsection (d) based on:
    1. The age of the child; or
    2. Minimal or inconsistent contact with the child by a party.

These above-mentioned factors and the best interest of the child factors are what the Judge will take into consideration in ordering a possession schedule for a child under three.

Some Judges may publish what his or her possession schedule is for a child under three. Other times, attorneys who practice in front of a Judge may have a sense of what a Judge will do based on their previous experience in that Court. However, there is no way to know what the Judge will do. Since there is so much discretion left to the Court, as a parent, you will want to present a proposed schedule to the Judge. You want to argue why your proposed schedule is best based on the factors above.

When crafting a possession schedule for your child, there are many different things to consider and think about.

1. Your Child: The age of your child may have an impact on your parenting schedule. Newborns are not the same as a two-and-a-half-year-old. Consider your child’s personality and how easily he or she adjusts to change and new environments. If your child has any special needs or health concerns, you will want to think about that as well.
2. The Care of Your Child: Who has been providing care for the child? How much time has each parent had with the baby and were they alone? Before your separation what did parenting look like? What does it look like now?
3. The Other Parent: If you’re a new mom reading this article, it may be hard to relinquish your baby to the father, especially if you’re separated. And if you’re reading this and are a father, you may be asking yourself how you can get more time with your baby? At this point, you brought a child into this word and that child has two parents. It is going to be important for your child to foster a relationship with both parents.
4. The Parent’s Relationship: What does your co-parenting relationship look like with the other parent? What can you do to improve that relationship? How often do the two of you speak to each other and how much are you willing to work with the other parent?
5. Daily Schedule: What does everyone’s schedules look like? Your schedule, the child’s schedule, the other parent’s schedule? Who has the most flexible schedule? What about the child’s daycare? How far does each parent live from the other, from work, or from daycare?
6. Separation of the Child: How will the separation from each parent impact and affect your child?
7. Other People: Are there other people in the home? The child’s brothers or sisters? Grandparents? Roommates? How will your schedule affect them?

What we normally see for a child under three is a step-up schedule for the Non-Primary Parent. That means that time starts small and frequent, but over time, it grows in the Standard Possession Order. There can big many advantages and disadvantages for this step-up schedule.

Examples of Step-Up Possession Schedules for a Child Under Three

Some examples of several step-up possession are below:

Example Possession Order 1

Until the child reaches the age of two years old, the Non-Primary Parent will have possession of the child:

• On Tuesdays of each week for two hours.
• On Thursdays of each week for two hours.
• On the first third and fifth Saturdays of each month for 6 hours.
• On the first, third and fifth Sundays of each month for 6 hours.

When the child reaches the age of two, the Non-Primary Parent will have possession of the child:

• On Tuesdays of each week for two hours.
• On Thursdays of each week for two hours.
• On the first third and fifth Saturday of each month overnight and into Sunday.

Once the child reaches the age of three, the Non-Primary Parent will begin to exercise the Standard Possession Order.

Example Possession Order 2

Until the child reaches the age of two years old, the Non-Primary Parent will have possession of the child:

• On Mondays of each week for two hours.
• On Wednesdays of each week for two hours.
• On Thursdays of each week for two hours.
• On the first third and fifth Saturdays of each month for 4 hours.
• On the first, third and fifth Sundays of each month for 4 hours.

When the child reaches the age of two, the Non-Primary Parent will have possession of the child:

• On Tuesdays of each week for two hours.
• On Thursdays of each week for two hours.
• On the first third and fifth Saturday of each month overnight and into Sunday.

Once the child reaches the age of three, the Non-Primary Parent will begin to exercise the Standard Possession Order.

Example Possession Order 3

Until the child reaches the age of two years old, the Non-Primary Parent will have possession of the child:

• On Mondays of each week for four hours.
• On Wednesdays of each week for four hours.
• On Saturdays of each week for 8 hours.

When the child reaches the age of two, the Non-Primary Parent will have possession of the child:

• On Mondays of each week for four hours.
• On Wednesdays of each week for four hours.
• On the first third and fifth Saturday of each month overnight and into Sunday.

Once the child reaches the age of three, the Non-Primary Parent will begin to exercise the Standard Possession Order.

The great thing about this possession schedule is that parents have a lot of freedom. Feel free to use these step-up orders as a base but modify it to fit your unique needs. It may be that parent’s agree to transition into the Standard Possession Order when the child reaches two or two and a half. Since parent’s act in the best interest of their child, if they reach this agreement together, they can do it!

There may be special terms or conditions that a parent may want to include in their agreement, including:

• Who will provide diapers, baby wipes, bibs, formula or breast milk, juice, food, or clothing?
• What equipment does each parent need to have at their residence? Crib, blankets, baby wipes, changing station, stroller, or car seat?
• Does each parent need to be required to furnish the child’s schedule with feedings, naps, or special concerns relating to the child’s health or development?

It’s also important to consider what holiday possession will look like. Since the Standard Possession Order is not in the child’s best interest, that means the extended holiday possession is not in the child’s best interest.

The holidays to consider are:

• Thanksgiving
• Christmas
• The child’s birthday
• Mother’s Day
• Father’s Day

The following is an example of Holiday Possession for a child under three:

• Until the child reaches the age of three, the parties will have holiday possession as follows:
  • Thanksgiving in Odd Years: Parent 2 will have Thanksgiving Day. 
  • Thanksgiving in Even Years: Parent 1 will have Thanksgiving Day. 
  • Christmas in Odd Years: Parent 2 will have Christmas Eve and Parent 1 will have Christmas Day. 
  • Christmas in Even Years: Parent 1 will have Christmas Eve and Parent 2 will have Christmas Day. 
  • Child’s Birthday: The parent not in possession of the child will have the child from 6:00-8:00pm. 
  • Mother’s Day: Mom will always have Mother’s Day or the entire Mother’s Day weekend. 
  • Father’s Day: Dad will always have Father’s Day or Father’s Day weekend.

To negotiate a visitation agreement that you and the other parent decide is sufficient, contact an experienced family law and child custody attorney who can help you come up with a suitable plan.