What are a father’s rights to see his child before and after a divorce?

A child flourishes when both parents play an active role in their lives. As a father, you have the right to spend time with your children and help mold them into well-adjusted adults. Let’s take a look at the rights you have as a dad, both during and after divorce.

Bottom Line

Fathers have the right to a relationship with their children both during and after a divorce. Learn the hard facts about your rights. 

What to Know Before You File for Divorce

If you and your spouse are separated but have not initiated the divorce process, you still have a right to see your child even if you have moved out of the marital home. So, unless there is a court order, your child’s mother cannot deny you from seeing or talking to your kids. In Texas, this is known as possession and access. 

If your spouse moves out of your home with the children and is refusing you access to them, you should contact an attorney and file for temporary orders as soon as possible. Contact your spouse and ask them to bring the children back, and keep a record of these requests. Make it clear that you want to see your children and that you are willing to go through the proper legal channels to do so.

After Temporary Orders are Issued

Once you file for divorce, you and your spouse must decide what child custody and visitation will look like while the divorce is pending. If you cannot agree, this is where temporary orders will come into play. These court orders cover where your child will primarily live and how visitation will be handled.

During the temporary orders hearing, you will have an opportunity to advocate for temporary custody, known as conservatorship in Texas. However, even if your ex-wife is granted temporary custody, she still must allow you to see your child while the final orders are pending. If she does not, the judge may terminate her temporary conservatorship.

Temporary orders last until the court enters the final orders or until the judge modifies the temporary orders. 

After the Divorce Settlement

Fathers have the same right to parent their children as mothers. In fact, Texas law specifically prohibits family courts from making child custody decisions based on gender. Texas Family Code § 153.003

Instead, Texas family courts begin each custody case with the presumption that the children should have frequent contact with both parents. This does not automatically mean that both parents will have equal possession of and access to the child, however.

The court is tasked with issuing a custody order that’s in the child’s best interest. To do that, the judge will consider factors like: 

• the child’s current and future emotional and physical needs
• each parent’s ability to provide for the child’s emotional and physical needs
• the stability of each parent’s home environments
• the existence of or potential for emotional or physical danger to the child
• the parental abilities of each person seeking custody
• the programs available to assist the parents in promoting the child’s best interest 
• the parent’s plans for the child by the individual seeking custody
• the acts or omissions of the parent that may indicate the existing relationship is improper
• any excuse for the acts or omissions of the parent 
• the child’s wishes (for older children)
  In the Int. of K.L.S., No. 11-21-00094-CV, 2022 Tex. App. (Tex. App. Feb. 10, 2022)

Enforcing Your Rights

If there is a possession and access order in place, your ex-wife cannot legally keep your child from you. If she does, you can file a motion asking the court to enforce your order.

Your motion must include:

1. the provision of the order you are seeking to enforce
2. the manner of your ex’s alleged noncompliance
3. the relief you are requesting; and
4. Your signature

Tex. Fam. Code § 157.002

Modifying the Custody Order

There are several reasons you may want to modify a possession and access order in Texas. Maybe your work schedule has changed, or perhaps your ex-wife has moved further away from you. 

In circumstances like these, you can file a modification request with the court. A modification requires the judge’s approval. If you don’t have a custody order in place, the judge will weigh the pros and cons of both sides and make a decision for you.

We Help Fathers and Children Stay Connected

Texas family law is predicated on the notion that your child needs both parents, as long as both parents are a source of support and stability. If your ex-wife is denying you the right to see your child, our Texas family law attorneys can help. Call 214-884-3775 today to begin your case assessment.