Saturday, August 18, 2007
Case Law Development: No Separate Cause of Action Available to Request Extended Visitation Under Texas Family Code
The Texas Court of Appeals, in a matter of first impression, holds that a custodial parent ("a possessory conservator" under the language of the Texas statutes) may not bring an independent cause of action seeking extended visitation. Such a request must, the court holds, be made before or at the time of an original custody order or a subsequent modification order.
If a possessory conservator fails to ask for extended visitation under section 153.317 until after the modification order is issued, then the request is untimely by virtue of the statute itself. Generally, a possessory conservator may seek a modification of a possession order under section 156.101 only when modification is otherwise justified under one of the three enumerated grounds: (1) the circumstances of the child or other party affected by the order have materially and substantially changed; (2) the child is at least twelve years old and wishes to change his or her primary residence; or (3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months....Thus, we conclude and hold that a request for extended visitation must be requested before or at a hearing on a modification request that meets these statutory prerequisites as well.
The court noted that, while the extended visitation statute does not expressly dictate decision based on a best interests standard, the general policy of the family code declare the best interests standard to govern in all child custody decisions. Moreover, because original custody decisions and modification decisions are governed by the best interests standard, requests for extended visitation, which necessarily must be heard at the same time, are also governed by that standard.
In the Interest of C.A.P., Jr. and M.M.P., 2007 Tex. App. LEXIS 6616 (August 16, 2007)
Opinion online (last visited August 18, 2007 bgf)