Having a formal possession order important when parents don’t live together
If you have a child but are not married to the other parent, having a formal possession order through the courts can prevent serious legal problems. Several recent cases prompt us to advise parents in this circumstance to get that done now instead of later.
CASE # 1: Eight years ago John and Freda (not their real names) separated and Freda disappeared, leaving their two-year-old son in John’s care. John went on with his life, but never filed a divorce action. After eight years on the lamb, Freda showed up one day at the child’s school with a copy of the child’s birth certificate and checked the child out of school. Because Freda was the child’s natural parent and there was no order on file preventing her from taking the child, the school had no choice but to release the child to her. She then disappeared with the child. It cost John several thousand dollars in attorney’s fees and private investigator expenses to track Freda down and get a court order to recover the child.
CASE #2: Five years ago Susan and Joe (not their real names) were living together. They had a child, Joe Jr., and both were listed on his birth certificate as the parents. Three years ago they split up and went their separate ways. Joe Sr. moved to another state with his new girlfriend. They continued to share custody of Joe Jr. informally. This arrangement seemed to work okay until it came time for Joe Jr. to start school. At that point, Susan insisted on keeping Joe Jr. most of the time so he could attend school. Joe Sr. did not like this arrangement because it meant that he could not spend as much time with his son. He threatened to take the child permanently to live with him. Fearing that he would snatch the child, Susan insisted that his next visit be in a public place and be supervised by her. During the visit Joe Sr. took the child and ran. Without a formal court order the police could and would do nothing to prevent it. It is suspected that Joe Sr. has taken Joe Jr. to the other state and he is refusing to divulge where the child is living. It will now cost Susan thousands of dollars in attorney’s fees and private investigator fees to recover her child. And if she waits too long to take action, she may have to do it in the other state.
Both of these situations could have been avoided if the parents had gotten a formal possession order before the other parent decided to abscond with the child. Without such an order each parent has an equal right to possession of the child and the police will usually not get involved to stop one parent or the other from running with the child or hiding the child.
If two parents who are married separate, as in Case No. 1, they should file for a divorce and as part of that divorce the court can and will make appropriate orders for the conservatorship, possession of, and support of the child(ren). If two parents are not married to each other, as in Case No. 2, they can still get a court order concerning their children by filing what is known in Texas as a “Suit Affecting the Parent-Child Relationship (SAPCR).” In either case, the Court will issue orders that set forth the rights and duties of each parent with respect to the child(ren), when each parent is allowed to have possession of the child(ren), and how the child(ren) will be supported.
The Attorney General of Texas has offices across the state and a large support staff whose sole purpose is to help parents obtain support for their minor children. Even if you can’t afford a private attorney to file a divorce or SAPCR, the AG’s office can still assist you in getting these orders, including conservatorship and possession orders. The only problem with using the AG’s services is that the AG is much more concerned with the issues of child support and medical support for the child. The AG’s office is really not equipped to deal with the finer issues of conservatorship and possession disputes. A private attorney can deal with all three areas in detail, and if one of the parents is ignoring the court’s orders concerning conservatorship or possession in some respect, a private attorney can usually take quicker action to enforce the court’s orders.
Finally, having a court order concerning conservatorship, possession and access may not prevent a parent from running with a child in the first place, but if they do, they are committing a felony and you can much more easily get the police involved to help recover your child.
So the lesson learned is that spending the money now to get a formal possession order can save many thousands of dollars and weeks or months of drama later.
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