Possession and Access – Children Under Three

The issue of possession under the age of three can be very controversial. One argument, is that noncustodial parents of infants do very well with caring for their children for extended periods of time. On the other hand, there are those that argue there should be no overnight visitation for children under three years of age. When confronted with an issue involving possession of children less than three, I typically advise clients to hire a child psychologist to present the mental health research to advise the Court – under the specific facts of the case- regarding what visitation would be best for the child. There are numerous positions on this issue in the courts and amongst the mental health professionals.

Some courts use stair-step provisions for increased possession, some do not provide for overnight possession for the possessory conservator until the child reaches 18 months, others set a limitation of four hours on Saturdays and Sundays, and all had varying reasons for each schedule. It appears that different schedules are being used and implemented in jurisdictions across the state.

Public policy in Texas is clear. Under the Texas Family Code is to (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. Moreover, the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.


At common law, the father was given the absolute right to custody of his children, which became known as the “paternal preference rule”. The mother had no legal rights to custody of the children at that time. However, at the turn of the century, law, psychology, and public policy were influenced by the notion that children are best served by being raised by their mother. That prevailing legal concept in custodial determination was based on the tender years doctrine. Thus, a presumption was created establishing that custody of young children should be awarded to the mother in cases of divorce or separation. Such a presumption was rebuttable by providing evidence that the mother was unfit.

During the 1980s, child-development research indicated that children were in fact able to form multiple attachments to multiple caretakers without any risk to their development. As a result, the focus in custody determinations shifted from the interest of the parents to the best interest of the child. Additionally, courts became more concerned with maintaining and fostering relationships with both parents for the benefit of the child. However, how the courts applied the best interest standard varied widely, especially when considering the issue of overnight visitation for infants and toddlers.

Current Law and Theory

Beginning with important articles published in 2000 that applied current child development research to parenting access plans, mental health professionals who researched and wrote about the development of developmentally appropriate parenting plans began to revisit the notion of parental access during the critical attachment years. Today, there is general consensus that children are best served by continuous and frequent contact with both parents. This is also the consensus, of what the Texas Family Code intends to accomplish, in that it is the policy of Texas to encourage frequent contact between the child and each parent for periods of possession that optimize the development of a close and a continuing relationship between each parent and child.

The Debate: Overnight Visitation

One of the most highly contested issues in custody disputes is the ability of infants and toddlers to tolerate overnight visitation away from their primary caregivers. Proponents of overnight restrictions and reduced paternal access usually cite certain theories and concepts of child development and empirical studies to support their position.

However, current research has shown that children benefit most from relationships with parents when parents are involved in discipline and limit setting, recreation, feeding, supervision of contact with peers, homework, and such everyday but important contexts – especially for young children – such as bathing, bedtime stories, putting children to bed, responding to night terrors and other night time fears, and getting children up, fed, and dressed in the morning. Overnights can provide opportunities to engage in types of interactions that simply are not possible during their absence, and they can play an important role in fostering the maintenance of parent-child relationships.

Overnights also play an important role in child adjustment. Overnight contact offers opportunities for adaption to differing household routines and exposure to differing parenting styles around bedtime, meals, and other intimate activities. Very young children appeared to show little, if any, negative effects of overnight contact with the nonresidential parent.1

1Many thanks to Diana Friedman for her CLE article “Possession and Access – Children Under Three” and her citations from forensic psychologist, Jonathan W. Gould, PhD from which much this article was derived.