Safe Child Visitation Without Court Orders

When there is no court order, there are no rules for visitation. Both legal parents have equal rights to the child. The law expects the parents to work together to parent the child by agreement according to the child’s best interests.

But this is not always what happens. If one parent wants to keep a child away from the other parent completely, there is no way to force visitation to happen. If one parent wants the child returned to them on Sunday night, and the other parent disagrees, there is no way to require the child’s return on a specific day and time. Not having any rules can create challenging situations unless both parents are willing to agree and follow them.

If there is no court order, neither parent can file an enforcement action. An enforcement action can only be used if a court order is violated.

The rights and duties of a parent can be found in Texas Family Code 151.001. These include the rights and duties to:

• Direct the moral or religious training of the child
• Choose the residence of the child
• Have physical possession of the child
• Take care of the child
• Have control of the child (in other words, make sure that they go to school, do not break the law, and generally follow any required rules)
• Protect the child from abuse, neglect, and other types of harm
• Reasonably discipline the child
• Support the child by providing them with food, clothing, shelter, medical and dental care, and education
• Make educational decisions for the child

Parents must take steps to protect their children from harm. Accidents happen, and a parent cannot prevent all harm. However, a parent should never physically, emotionally, or sexually abuse a child. Further, a parent should provide adequate supervision for a child based on that child’s age, maturity, and any special needs.

A parent is not being protective if they put their child in a situation (or fail to remove their child from a situation) that they should know is unsafe, and the child is injured or harmed. One example is a parent who leaves their toddler with a friend who is drunk and unable to supervise the child properly. Another example is a parent who continues to live with a boyfriend who is physically abusive to the parent or the child.

If a parent does not protect their child, the child could be harmed, CPS could get involved, and the parent’s failure to protect the child could be used against them in court. In extreme cases, a court could terminate a parent’s rights to their child.

The duty to protect often requires a parent to take protective action if they know a child has been hurt. This may include immediately removing the child from the situation and reporting the situation to the appropriate authorities, such as law enforcement, Child Protective Services (CPS), and the courts.

If you believe that the other parent is a danger to your child, there are several options:

• Report to CPS.
• Call the police.
• Request a court order.
• Request a temporary restraining order (TRO).
• Request a protective order.

Talk to a lawyer if you are not sure how to proceed or if you think that doing nothing is the best course of action.

Many families decide to get court orders so that there are clear rules that each parent has to follow. To read more about how to set up a court order, see I need a custody order. I am the child's parent.

Another way to get a court order is by applying for services through the Texas Attorney General’s Office. The Attorney General's role is to make sure children are being supported, but Texas law generally requires custody orders when child support is ordered.

Tip: Only a legal parent has rights to a child when there are no court orders. Determining a legal father can be more complex than deciding who a legal mother is. See I need a paternity order.

If you believe that a child is being abused or neglected by the other parent or by any other caretaker, you can make a report to CPS. Child Protective Investigations is the part of the Texas state agency that investigates allegations of child abuse and neglect. They will usually only investigate if they feel that a child has been abused or neglected or is at risk of harm. If a child is in a safe, protective home and the unsafe parent does not have access to the child, Child Protective Investigations may choose not to take any further action. However, if the child is in the care of someone they believe is unsafe, Child Protective Investigations may take steps to ensure that the child is safe.

If you believe that a crime is being committed or that a child is at risk of immediate harm, you can call your local law enforcement and ask them to do a well check or respond to a criminal situation. You can call 9-1-1 for emergency situations and 3-1-1 for non-emergency situations.

If no crime is being committed and a child is not in immediate danger, it is not law enforcement’s job to make decisions about who a child should live with or go with. In this situation, law enforcement will generally do nothing and tell the family to take the case to family law court. If a child seems to be in danger, it is very common for the police to make a report to CPS.

Sometimes the best way to protect a child is to request a court order with specific rules that will keep them safe. Some examples could be an order that:

• requires the other parent’s visits to be supervised or be in a public place,
• lets you ask for drug tests from the other parent before a visit is allowed, or
• the other parent cannot drive with the child in the car.

In order to get these types of orders, you must have evidence to convince a judge that it would be in the child’s best interest.

Although it is possible to get a court order through Child Support at the Attorney General’s Office, this is generally not a quick process and won’t help in an emergency. It is possible to file a Petition in Suit Affecting the Parent-Child Relationship on your own or with the help of an attorney.

A Temporary Restraining Order (or TRO) can be used to protect a child in an emergency when there is risk of immediate and irreparable harm to the child. A TRO is filed along with an Original SAPCR Petition or a Petition to Modify. It can be granted by a judge the same day it is filed and is meant to keep the child safe for a short time while the safe parent prepares for a hearing on temporary conservatorship and visitation orders.

A protective order is meant to be used in very dangerous situations where a child has been a victim of domestic violence, physical abuse, or sexual abuse. If a child has been a victim of family violence, any adult family member or household member may file on behalf of the child for a Protective Order. When the child has been a victim of certain crimes, a protective order can be requested by any adult on behalf of the child. It can be filed by itself (unlike a TRO). A protective order can also be used to protect an adult—including the other parent—who has been a victim of domestic violence, stalking, or sexual assault.

If the child is with you and the other parent has no way to take the child (such as picking them up at school), then one option may be to do nothing. If there is no court order, there is no way for the other parent to force you to give them the child for a visit. If you go to court, it is possible that the other parent may get the court-ordered right to visitation. However, this can be a risky decision. Also, doing nothing does not prevent the other parent from going to court to request a court order.

Talk to a lawyer if you are wondering about the very serious risks of doing nothing. Call the Family Helpline to talk to a lawyer who is an expert in CPS matters.