How would I get supervised visitation to protect my son since his father is getting out of prison?

Full question:

My son is 10 years old and his father has been in and out of his life since birth and has never followed court orders on visitation. He's been on and off drugs, hangs around nothing but drug dealers and has been to prison 3 times with numerous felonies. He was sentenced to 8 year TDC time February 07. He's up for parole and I'm scared. He doesn't know how to be a father, I'm afraid he's going to influence my son in a bad way, or put him in bad situations and truthfully I'm afraid of him dropping out of my son's life again. I would like to know if I can obtain supervised visitation for him when he gets out because I honestly don't trust him with my child. My son sees him now in prison more than he ever has in his entire life because his grandmother takes him down sometimes. I don't know if getting an attorney is going to be a waste of my money or if I have a legit case. Can you advise what the best way to go about doing this is?

• Category: Divorce
• Subcategory: Visitation
• Date: 04/07/2025
• State: Texas

Answer:

The court will appoint the parent a Possessory Conservator unless the court finds that such an appointment is not in the child's best interest. Texas Family Code section 153.191. There is a rebuttable presumption in Texas law that the Standard Possession Order set out in the family code is reasonable minimum possession for a parent and is in the best interest of the child. Texas Family Code section 153.252. In order to be granted supervised visitation only, this presumption must be rebutted by evidence that it would be harmful to the child, or that the child may be uncomfortable because he doesn't know his parent.

It will be a matter of subjective determination for the court, based on all of the facts and circumstances involved. A pattern of drug abuse and attending consequences may provide evidence that a person poses a risk of harm to the child, either by exposure to illegal substances or lack of ability to supervise the child sue to an impaired mental state. Proof that the parent is violent and/or has harmed the child or poses a risk of abducting the child is more likely to have the court award a request for supervised visitation.

§ 153.004 FAM. History of Domestic Violence

(a) In determining whether to appoint a party as a sole or joint
managing conservator, the court shall consider evidence of the
intentional use of abusive physical force by a party against the party's
spouse, a parent of the child, or any person younger than 18 years of age
committed within a two-year period preceding the filing of the suit or
during the pendency of the suit.

(b) The court may not appoint joint managing conservators if credible
evidence is presented of a history or pattern of past or present child
neglect, or physical or sexual abuse by one parent directed against the
other parent, a spouse, or a child, including a sexual assault in
violation of Section 22.011 or 22.021, Penal Code, that results in the
other parent becoming pregnant with the child. A history of sexual abuse
includes a sexual assault that results in the other parent becoming
pregnant with the child, regardless of the prior relationship of the
parents. It is a rebuttable presumption that the appointment of a parent
as the sole managing conservator of a child or as the conservator who has
the exclusive right to determine the primary residence of a child is not
in the best interest of the child if credible evidence is presented of a
history or pattern of past or present child neglect, or physical or
sexual abuse by that parent directed against the other parent, a spouse,
or a child.

(c) The court shall consider the commission of family violence in
determining whether to deny, restrict, or limit the possession of a child
by a parent who is appointed as a possessory conservator.

(d) The court may not allow a parent to have access to a child for whom
it is shown by a preponderance of the evidence that there is a history or
pattern of committing family violence during the two years preceding the
date of the filing of the suit or during the pendency of the suit, unless
the court:

(1) finds that awarding the parent access to the child would not
endanger the child's physical health or emotional welfare and would be in
the best interest of the child; and

(2) renders a possession order that is designed to protect the safety
and well-being of the child and any other person who has been a victim of
family violence committed by the parent and that may include a
requirement that:

(A) the periods of access be continuously supervised by an entity or
person chosen by the court;

(B) the exchange of possession of the child occur in a protective
setting;

(C) the parent abstain from the consumption of alcohol or a controlled
substance, as defined by Chapter 481, Health and Safety Code, within 12
hours prior to or during the period of access to the child; or

(D) the parent attend and complete a battering intervention and
prevention program as provided by Article 42.141, Code of Criminal
Procedure, or. if such a program is not available, complete a course of
treatment under Section 153.010

(e) It is a rebuttable presumption that it is not in the best interest
of a child for a parent to have unsupervised visitation with the child if
credible evidence is presented of a history or pattern of past or present
child neglect or physical or sexual abuse by that parent directed against
the other parent, a spouse. or a child.

(f) In determining under this section whether there is credible
evidence of a history or pattern of past or present child neglect or
physical or sexual abuse by a parent directed against the other parent, a
spouse, or a child, the court shall consider whether a protective order
was rendered under Chapter 85, Title 4, against the parent during the
two-year period preceding the filing of the suit or during the pendency
of the suit.

§ 153.501 FAM. Necessity of Measures to Prevent International Parental
Child Abduction

(a) In a suit, if credible evidence is presented to the court
indicating a potential risk of the international abduction of a child by
a parent of the child, the court, on its own motion or at the request of
a party to the suit, shall determine under this section whether it is
necessary for the court to take one or more of the measures described by
Section 153.503 to protect the child from the risk of abduction by the
parent.

(b) In determining whether to take any of the measures described by
Section 153.503, the court shall consider:

(1) the public policies of this state described by Section 153.001(a)
and the consideration of the best interest of the child under Section
153.002;

(2) the risk of international abduction of the child by a parent of the
child based on the court's evaluation of the risk factors described by
Section 153.502;

(3) any obstacles to locating, recovering, and returning the child if
the child is abducted to a foreign country; and

(4) the potential physical or psychological harm to the child if the
child is abducted to a foreign country.

§ 153.001 FAM. Public Policy

(a) The public policy of this state 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.

(b) A court may not render an order that conditions the right of a
conservator to possession of or access to a child on the payment of child
support.

§ 153.002 FAM. Best Interest of Child

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.

§ 156.001 FAM. FAM. Orders Subject to Modification

A court with continuing, exclusive jurisdiction may modify an order
that provides for the conservatorship, support, or possession of and
access to a child.

§ 156.002 FAM. Who can File

(a) A party affected by an order may file a suit for modification in
the court with continuing, exclusive jurisdiction.

(b) A person or entity who, at the time of filing, has standing
to sue under Chapter 102 may file a suit for modification in the
court with continuing, exclusive jurisdiction.

§ 156.005 FAM. Frivolous Filing of Suit for Modification

If the court finds that a suit for modification is filed frivolously or
is designed to harass a party, the court shall tax attorney's fees as
costs against the offending party.

§ 156.101 FAM. FAM. Grounds for Modification of Order
Establishing Conservatorship or Possession and Access

The court may modify an order that provides for the appointment of a
conservator of a child, that provides the terms and conditions of
conservatorship, or that provides for the possession of or access to a
child if modification would be in the best interest of the child and:

(1) the circumstances of the child, a conservator, or other party
affected by the order have materially and substantially changed since the
earlier of:

(A) the date of the rendition of the order; or

(B) the date of the signing of a mediated or collaborative law
settlement agreement on which the order is based;

(2) the child is at least 12 years of age and has filed with the
court, in writing, the name of the person who is the child's preference
to have the exclusive right to designate the primary residence of the
child; or

(3) the conservator who has the exclusive right to designate the
primary residence of the child has voluntarily relinquished the primary
care and possession of the child to another person for at least six
months.