Lauren Powell Powell Law Offices, P.C.
ISSUE 10 | FALL 2021 | FAMILY LAW MATTERS II |
The break-up of a marriage or romantic relationship is traumatic for everyone involved, especially the children. Many times, a parent comes into our office saying that he or she is a great parent, and “deserves” equal time with his or her children. However, the statutory standard possession schedule in Texas does not grant each parent equal possession time with the children. Many public interest groups and legislators are working to change that.
Texas Possession Schedules What is the standard possession schedule in Texas? How much time does each parent get with the children once a divorce or a suit affecting parent-child relationship is in process? The standard possession schedule in Texas is defined in the Texas Family Code.¹ Under the standard possession schedule, the children’s primary residence is with one parent, known as the custodial parent. The other parent, or noncustodial parent, receives possession of the children during the school year on the first, third, and fifth weekends of the month from Friday at 6:00 p.m. until Sunday at 6:00 p.m., and every Thursday night, from 6:00 p.m. until 8:00 p.m. The first, third, and fifth weekend is determined by the first, third, and fifth Fridays of each month. During the holidays—regardless of the distance the parents live apart—the standard possession schedule is laid out as follows:
The parents alternate Spring Breaks with the children. One parent gets the children on even-numbered years and the other parent gets the children on odd-numbered years.
The mother gets the children on Mother’s Day weekend each year from Friday at 6:00 p.m. until Sunday at 6:00 p.m.
The father gets the children on Father’s Day weekend each year from Friday at 6:00 p.m. until Sunday at 6:00 p.m.
One parent gets the children for Thanksgiving break in odd years, and the other parent gets Thanksgiving break in even years, beginning on the Friday school releases at 6:00 p.m. until 6:00 p.m. the Sunday after Thanksgiving.
The parent who doesn’t get Thanksgiving break gets the first part of Christmas break from school, from the day school dismisses for Christmas break at 6:00 p.m. until December 28 at noon. The parent who had the children during Thanksgiving break gets the children from December 28 at noon until 6:00 p.m. on the Sunday before school resumes after Christmas.
During the summers, the noncustodial parent gets the children on the first, third, and fifth Fridays at 6:00 p.m. until Sunday at 6:00 p.m., and all of July unless the parent elects otherwise in an agreement between the parents. The custodial parent may have the children for one weekend of the noncustodial parent’s summer weekends, and for one weekend during July.
On September 1, 2021, the law changed in Texas to “expanded standard possession” the norm for parents living within fifty miles of each other. The expanded standard possession schedule can be found in Section 153.317 of the Texas Family Code.
The main difference between the “expanded” standard possession schedule and the “standard” possession schedule is that—in the expanded standard possession schedule—possession begins on Fridays when school is dismissed and ends the following Monday when school resumes on the first, third, and fifth weekends of the month. The noncustodial parent also gets Thursdays overnight each week.
If parents live more than 100 miles apart, the standard possession schedule differs for the school year and the summer. During the school year, the noncustodial parent may choose the first, third, and fifth weekends of the month, or one weekend a month of his/her choosing with no Thursday possession.
During the summer, the noncustodial parent receives forty-two consecutive days with the children, from June 15 until July 27, unless the noncustodial parent elects different dates in writing to the custodial parent by April 15 of each year.
The Best Interest of the Child The Texas Family Code always requires the Court to determine what is in the “best interest of the child.”² While there is no technical definition of “best interest of the child," it is a fact-based finding based on the facts and circumstances of the parties and the child determined by the judge in each case. If the judge determines it is not in the best interest of the child for the nonpossessory parent to have expanded standard possession of the child, then the judge can deny the parent’s request for expanded standard possession.
The judge can also order supervised possession, and less possession than standard possession for a noncustodial parent, if it is in the best interest of the child.
Coparenting and Custom Possession Schedules Texas Courts want parents to work together on issues related to their children. Therefore, Courts support parents reaching any agreement when it comes to the time each parent can spend with their children. Most court orders containing a possession schedule in Texas have language that allows the parties to agree to a different possession schedule than the one required by law or stated in the order. This encourages parents to look at their work schedules, the child’s schedule, and craft a possession schedule that works best for everyone involved.
What’s Next? With the recent law change making “expanded” standard possession the norm in Texas for parents who live within fifty miles of each other, it seems that Texas may be getting closer to establishing a standard 50/50 equal possession time law. Family law professionals will be watching this issue closely for further developments. Stay tuned!
Sources ¹ Tex. Fam. Code §§ 153.312–.316 (2019). ² Tex. Fam. Code § 153.002 (2019).
