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Possession: How Parenting Time is Determined in Texas

This article was written by Hance Law Group associate attorney Beverly Via.

One of the most important (and potentially contentious) aspects of a divorce settlement has to do with parenting time. The Texas legislature and courts have established that the public policy of the state is that children should have “frequent and continuing” contact with parents who are able to act in their best interest and to provide a safe environment for them. The best interest of the child will always be the Court’s primary consideration when reviewing parenting plans or deciding conservatorship and possession issues. The child’s best interest also should be the parents’ primary focus when planning for the family’s post-divorce life. The divorce decree provides what I like to think of as a good “backstop.” After divorce, parents can decide to make changes to the plan by mutual agreement, but if one parent wants to change the parenting time and the other does not, the decree is there to provide a schedule to which both parents must legally adhere.

The Texas Family Code lays out a series of guidelines used to create parenting plans, including what it terms the “standard possession order,” and an alternative option that lawyers and judges refer to as “expanded standard possession.”  The time that a parent spends with his or her child is referred to in the statute as “possession.” While some parents are able to craft a possession schedule that either is or approaches a 50/50 time split, many ends up with a parenting plan based on the statutory standard possession schedule.

The standard possession order distinguishes between parents who reside 100 miles or less apart and those who live more than 100 miles apart. In most situations, parents live less than 100 miles apart. In those cases, one parent has the majority of time with the children, and the other parent has designated weekday and weekend time with the children. Though the terms “custodial parent” (CP) and “non-custodial parent” (NCP) are more typically applied to child support matters than possession matters, they’re useful terms to illustrate what happens with standard and expanded standard possession.

With a standard possession schedule, the NCP has possession on the first, third, and fifth weekends of the month, as well as on every Thursday night during the school year. The Thursday possession is from 6 to 8 p.m., and the weekend possession begins at 6 p.m. on Friday and ends at 6 p.m. on the following Sunday. With expanded standard possession, those stays can begin after school and extend until the child returns to school the next morning, with the NCP responsible for getting the kids to school on Friday morning (for Thursday possession) and Monday morning (following the weekend). On holiday weekends where the NCP has possession (such as Labor Day or MLK Day), the arrangement extends an additional day, so possession on a weekend with a Monday holiday, for example, ends at 6 p.m. on Monday (or when the child returns to school on Tuesday under the expanded standard alternative).

The rules governing certain major holidays show how equitable the Texas Family Code tries to be on possession matters, and apply regardless of how far apart the parents reside from each other. In even years, the NCP gets possession from the day school lets out for winter break to December 28th at noon, and also gets the entire spring break period. In odd years, the NCP gets possession for the Thanksgiving break (which varies depending on a child’s school or school district) and from December 28th to when school resumes after winter break. There are also guidelines that allow for Mother’s Day and Father’s Day possession to go to the mother and father respectively, regardless of who is the CP or NCP.

During the summer, the NCP is also entitled to 30 days of possession which are to be in one or two blocks. If the NCP submits the dates in writing to the CP by April 1, those dates go into the official parenting schedule for the year. If an NCP does not make a request by April 1, the default time is from 6 p.m. on July 1 through 6 p.m. on July 31. If the CP gives notice by April 15, the CP has can have possession of the child for one weekend during NCP’s extended summer possession and can designate another weekend during which NCP will not have regular weekend possession. Both parents then have the opportunity to spend some uninterrupted vacation time with the child.

For parents residing more than 100 miles apart, the NCP gets possession for the first, third, and fifth weekends each month, spring break each year, and for 42 days in the summer, to “make up” for the Thursday possession time that can’t be achieved due to the logistics of getting children to school. Should logistics prove too difficult, the NCP has the option to elect to have possession any one weekend per month, with 14 days’ written notice preceding that weekend, provided that NCP elects this alternative possession schedule within 90 days after the parties begin to reside more than 100 miles apart.

The guidelines are, of course, dependent on the judge’s determination for what’s in the child or children’s best interest in a particular case. And these particular guidelines apply to children who are at least three years old; for children under three, the Texas Family Code holds that the court shall “render an order appropriate under the circumstances,” factoring in what’s best for the child without specifically codified dates and times.

While these guidelines might seem confusing at first, they’re actually designed to reduce confusion and to help children with divorced parents have a sense of structure.

But what if parents determine that they’d like to do something different than what the courts typically prescribe? In my next article, I’ll take about how to make this work, and what pitfalls you might encounter along the way.