In an opinion today that will no doubt cause a Pandora’s Box to open in the family courts, the Texas Supreme Court held that “as agreed” possession orders are authorized, valid, and constitutional. Based on the broad and undefined standards of “good cause” and “best interest”, a possession order that gives one party unlimited and complete discretion over the other party’s access to the child is perfectly acceptable. Here’s some quotes from this sweeping opinion:

Read the case here: IN THE INTEREST OF J.J.R.S. AND L.J.R.S., CHILDREN

“While we understand the gravity of imposing a severe restriction or limitation on access to one’s children, we nevertheless conclude that the trial court did not abuse its discretion in vesting the managing conservators with complete discretion over Mother’s access to the children.”  (Opinion at 7.)

“In other words, once a trial court determines that good cause exists for a nonspecific order, the only question left is whether the extent of the restriction or limitation under section 153.193 is in the best interest of the child.” (Opinion at 10.)

“Mother next argues that if a total denial of access serves the children’s best interest, the trial court must terminate the parent-child relationship instead of creating a possessory conservatorship that amounts to an effective denial of access. Again, the trial court’s order was not a denial of access [because she could seek to modify in the future].” (Opinion at 15.)

“Whether a set of broad, enforceable guidelines is preferable to an order granting discretion to the managing conservators requires a case-by-case determination of the child’s best interest.” (Opinion at 15.)

“Thus, while an order must be ‘clear, specific, and unambiguous’ to be enforceable by contempt, it does not follow that every order less than that is invalid.” (Opinion at 18.)

“…[T]he Code does not require – nor have we ever held – that trial courts must issue orders that are always enforceable by contempt.” (Opinion at 18.)

So the questions to the family lawyers out there: Does this effectively reverse Slavin’s requirement of specificity? Or at least put Slavin on the bench warming the seat? And, will this give trial court’s even more discretion to do whatever they want with out any boundaries whatsoever?

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.