Many parents who share custody disagree about how visitation should be handled or think they have valid reasons to withhold visitation from the other parent. The truth is, withholding visitation from the non-custodial parent or custodial parent is generally frowned upon by the Texas family courts. In fact, a father or mother withholding visitation can face serious consequences—even losing custody in extreme cases—so it’s important to get legal advice before withholding visitation from the other parent.
Child custody and visitation agreements are legally binding in Texas
If you have children and get a divorce, part of the divorce process will be to determine how custody and visitation will be handled during the divorce (under temporary orders) and after the divorce through legally binding child custody orders. These orders include the parenting plan, visitation guidelines, and child support arrangements, among other directives.
Once you and the other parent sign off on those orders, you must abide by them. A custodial parent withholding visitation from a non-custodial parent (and vice versa) can face legal consequences for violating a court order in Texas if the non-custodial parent files for an enforcement of the orders. So, if you’re wondering can a father or can a mother legally withhold visitation, the answer is generally no, as long as there are custody orders in place.
Can you withhold visitation for unpaid child support?
Withholding visitation from the non-custodial parent for not paying child support is an all-too-common occurrence in Texas and across the United States. In Texas, you cannot legally withhold visitation from a non-custodial parent for not paying child support.
On the flip side, the non-custodial parent (possessory conservator) shouldn’t stop paying child support if the primary conservator withholds visitation. In Texas, child support is not contractual and it is not contingent upon the non-custodial parent getting visitation.
If you’re a dad in a situation with the mother withholding visitation from father, you should keep paying child support without visitation because you will still owe that money regardless. Your attorney can guide you on how to follow proper legal channels and file for the enforcement of your visitation orders in family court.
What happens if the parents never married and they don’t have custody orders?
Just because you never married and didn’t go through a divorce, doesn’t mean you shouldn’t take steps to put legal custody arrangements in place. Either parent can file a SAPCR (suit affecting the parent-child relationship) to protect their parental rights, establish a parenting plan, and put visitation arrangements and child support in place.
Without a valid court order for child custody, the parents end up operating without rules, at least legally. That may be OK in the short-term if the parents get along, but in the long term, it’s best to put those custody orders in writing to ensure both parents have access to the child and child support arrangements are made.
If the parents can’t afford to pay for an attorney, they should at least engage the Texas Attorney General’s office to establish child support. However, it’s typically best to consult a family law attorney to find out what your rights are as a parent and what steps you can take legally to protect your parental rights.
The sooner you act, the better. For example, we don’t want a dad to have to go too long without having a visitation schedule to see his baby, or the primary conservator to go too long without getting child support. Putting things in writing can also help ease concerns that a parent will try to rip their child away and force them to spend thousands of dollars to get custody or visitation back.
It’s really important to have a roadmap in place in the way of custody orders, and adhere to it strictly, unless you need to withhold access for a very limited time to correct and/or protect from an emergency situation.
Grandparents can also get entangled in withholding visitation scenarios, simply because they want to help out and care for a grandchild. As a grandparent, it’s important to should find out if a valid court order is in place for custody and visitation, and if there is one, not violate the orders on behalf of their adult child.
Is withholding visitation from a non-custodial parent (or custodial parent) okay in an emergency?
Lawyers generally never advise clients to withhold possession of a child, whether the client is the custodial or non-custodial parent (known as primary and possessory conservators in Texas). You shouldn’t withhold visitation in violation of a court order based on some fears or thoughts until you speak with an attorney.
And if an attorney tells you to withhold visitation—say you have concerns about drug use or the safety and welfare of your child—it should be for a very, very finite limited amount of time to simply get to the court to file an emergency protective order. Even though these situations are extreme, you do need to act fast. By definition, withholding possession from the other party means there’s a valid court order in place, and you would be violating it by withholding visitation from non-custodial parent or custodial parent.
If you do believe your child has actually been harmed by the other parent, your immediate response should be to contact the local authorities and contact Child Protective Services to open a case. It’s also important to bring the child to a doctor because the injuries that result from family violence are frequently internal if God forbid that’s the case, and you need to document that you’ve had your child checked out by a doctor for two reasons.
Reason one is for the safety and welfare of the child. Reason two is for evidentiary purposes because a lot of he said-she said occurs surrounding events where possession and access is withheld. When you get into a he-said-she-said situation with a court order in place, and you don’t have that smoking gun, you could find yourself in an enforcement case, even though you’re trying to protect the safety and welfare of your child.
Have questions about child custody and visitation in Dallas / Fort Worth?
The family law attorneys at the Sisemore Law Firm in Fort Worth are here to help. Withholding visitation at custodial parental discretion or non-custodial parent discretion is typically not a good idea unless a lawyer advises you to do so to protect your child. If you are concerned about your child’s safety and welfare or are trying to regain custody or visitation, our experienced family lawyers can review your case and explain your options.
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