Visitation Curtailed for Failure to Exercise It

In an unusual twist, a mother requested the trial court to require the father to exercise possession of the children after the father moved to New York City. The mother wanted the father to visit with the older child at least once per month and not to have extended summer visitation unless the father had exercised his monthly possession for at least the three months prior to summer visitation. The mother wanted the father to exercise consecutive visitations with the other child before possession of that child could increase.

The key to the case lay in the children’s ages. N.S., the older child, was born in 2007, and the younger child, A.S., was born in 2010. The parties divorced in November 2010. The father moved to New York in March 2011.

The trial court ordered that the father have possession of the children one weekend per month and for one week during the summer and the week after Christmas. The monthly visits had to be in Texas, but the week-long visits could be in New York.

The Austin Court of Appeals affirmed, stating that:

the trial court heard evidence that N.S. got very upset when his father did not exercise visitation; he had difficulty readjusting when he returned from a weekend visitation; was tearful and very clingy when his mother dropped him off at school following a visitation; and often did not want to speak to [the father] on the telephone. Further, [the father] had exercised very few visitation periods since moving to New York City. . . .

On this record, given the children’s young ages, the evidence that N.S. was upset after weekend visitations and when [the father] missed a visitation, the infrequency of [the father]’s visitations with A.S., and the extremely deferential standard of review applied in modification cases, we cannot conclude the trial court abused its discretion in determining that reducing [the father]’s visitations was in the children’s best interest.

Schell v. Schell, No. 03-11-00833-CV (Tex. App. – Austin Feb. 14, 2014) (mem. op.).

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