Best Interest of a Child or Children in Determining Possession and AccessThe
best interest of the child is the primary consideration in the determining issues of possession and access when it comes to Texas child custody and visitation disputes. Tex. Fam. Code Ann. ' 153.002 (Vernon 2002). The trial court has broad discretion in determining
possession and access to a child.
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).
If the trial court appoints a managing conservator, it may appoint one or more possessory conservators. Tex. Fam. Code Ann. ' 153.006(a) (Vernon 2002).
With respect to appointing a parent as a possessory conservator, the Texas Family Code provides:
The court shall appoint as a possessory conservator a parent who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.
Tex. Fam. Code Ann. ' 153.191 (Vernon 2002) (emphasis added). The Family Code further provides with regard to the restriction of a parent's access to a child:
The terms of an order that denies possession of child to a parent or imposes restrictions or limitations on a parent's right to possession of or access to a child may not exceed those that are required to protect the best interest of the child. Tex. Fam. Code Ann. ' 153.193 (Vernon 2002).
The trial court's determination that access, even restricted access, would endanger the physical or emotional welfare of the child precludes the court from appointing that parent possessory conservator. In re Walters, 39 S.W.3d 280, 286 (Tex. App.Texarkana 2001, no pet.). However, the trial court may appoint a parent possessory conservator if it determines access would not endanger the physical or emotional well being of the child, even though access to the child would not be in the child's best interest. Id.; Hopkins v. Hopkins, 853 S.W.2d 134, 137 (Tex. App.Corpus Christi 1993, no writ). In such cases, the trial court may appoint a parent a possessory conservator and deny that parent any access to or possession of the child, if such restriction is in the best interest of the child. Hopkins, 853 S.W.2d at 137B38; see also In re Walters, 39 S.W.3d at 286 n.2 (stating a limitation that amounts to a denial of access is permissible if it is in the best interest of the child).
In all cases, access, conservatorship and child visitation disputes are always reviewed under the best interest of the child standard. However, divorcing parents can and often do agree to modified access, conservatorship and visitation. Parties are allowed to enter into an agreed visitation and conservatorship agreement. It's best to have a family law or child custody attorney review agreements before entering into such modified custody agreements.