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Dividing Custody for Children Under Three (3) Years Old


Any family law practitioner in the State of Texas knows that the basic premise (public policy) behind child custody law and orders is to achieve what's it in the best interest of the child; to provide “frequent and continuing contact with parents who have shown the ability to act in the best interest of the child in a safe, stable and nonviolent environment” and set the terms for sharing in the duties of raising their child after separating or dissolving their marriage. TFC §153.001. Generally, fairness in ordering shared custody can be achieved by ordering a Standard Possession Order which details who will have possession of the child on various weekends during each month, vacation periods throughout the school year, and over the summer break. But what about young children who are not yet in school? What is the consensus minimum standard for ensuring visitation is ordered in their best interest? Well the revised section 153.254 the Texas Family Code now provides guidance to courts on rendering such orders. So fret not. When parents cannot agree on a visitation schedule for a child under the age of three (3), section 153.254 requires that a court is to consider the following factors in rendering an order:

(1) the caregiving provided to the child before and during the current suit;

(2) the effect on the child that may result from separation from either party;

(3) the availability of the parties as caregivers and the willingness of the parties to personally care for the child;

(4) the physical, medical, behavioral, and developmental needs of the child;

(5) the physical, medical, emotional, economic, and social conditions of the parties;

(6) the impact and influence of individuals, other than the parties, who will be present during periods of possession;

(7) the presence of siblings during periods of possession;

(8) the child's need to develop healthy attachments to both parents;

(9) the child's need for continuity of routine;

(10) the location and proximity of the residences of the parties;

(11) the need for a temporary possession schedule that incrementally shifts to the schedule provided in the prospective order under Subsection (d) based on:

(A) the age of the child; or

(B) minimal or inconsistent contact with the child by a party;

(12) the ability of the parties to share in the responsibilities, rights, and duties of parenting; and

(13) any other evidence of the best interest of the child.

Should you find yourself in need of custody provisions for a child under the age of three at least you know how the courts are required to evaluate your circumstance.

If you would like more information or wish to discuss your specific situation, contact us at (713) 993-7310 or


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