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When Standard Possession Isn’t Enough

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

In my last article, I reviewed the guidelines in the Texas Family Code around the standard and expanded standard possession orders. The orders are designed to give each parent in a divorce parenting time, they’re designed to minimize conflict between parents (by apportioning spring breaks and holidays fairly), and they’re designed with the children in mind – by minimizing the disruption to their schedules in moving from house to house.

But, while they might be designed to be “fair,” they may not always be equitable – there’s what we called the custodial parent (borrowing from child support terminology) who has the children a majority of the time, and a non-custodial parent who doesn’t. Some parents may prefer to negotiate a 50-50 parenting plan that allows each parent to have closer to the same amount of possession.

The easiest way to do a 50-50 possession schedule is to alternate weeks, as the exchange day will be consistent. However, there are other alternatives as well, such as the 2-2-5-5 plan and the 2-2-3 plan, which refer to the alternating days that the mother and father have possession. A good overview of some common alternative plans can be found here.

The one thing I point out to divorcing couples who are thinking about a 50-50 parenting schedule is that each of the options will require co-parents to be more involved with each other. Additional communication is required to make these plans work effectively with respect to scheduling weekly extracurricular activities, sorting out parenting schedules, and making sure necessary items make it from house to house. When creating a seemingly more equal parenting time plan, the maxim, “The devil is in the details,” definitely applies.

With a 2-2-3, a 2-2-5-5, or some other permutation in which there are more frequent transitions between mom’s house and dad’s house, it also requires more coordination between the parents. For example, if one parent lives in Dallas and one parent lives in Colleyville, any of the 50-50 plans will increase the time that children spend in the car, as they’ll have longer school commutes instead of just travel time to each parent’s house for the weekend. While it’s not necessary for parents with a 50-50 schedule to live in the same school district, parents making the commitment to live close together helps minimize the impact on their children.

It’s also important, going into discussions about a parenting plan, to know what’s sustainable over the long term. While parents certainly can agree to changes on their own that deviate from what’s in the divorce decree and can create their own written documentation for those changes, it’s only truly legal, official, and enforceable if it’s in the decree or subsequent modification order.

If the parents’ circumstances change after a few years, and both parents decide they want to modify their parenting plan (say, from a standard possession to a 50-50), a modification may be able to be accomplished without a hearing depending on which county you live in. In Dallas County, for example, I’ve been able to prepare a motion to modify and an agreed order of modification, have both parents sign the order and submit it to the judge without a hearing.

The court will typically not modify within a year of a divorce (or a prior order of modification) unless there’s an emergency involved. Within a year of the order, a parent seeking to modify the possession schedule will have to show a material and substantial change in a parent or child’s situation, but that’s typically not enough to affect possession orders unless that change could potentially jeopardize a child’s welfare and modifying the order is in the child’s best interest.

Though the wishes and circumstances of the parents definitely figure into a parenting plan, the possession schedule in a decree is ultimately in place for the children. And that’s really the perspective that divorcing parents should bring into these discussions. 50-50 schedules can work beautifully for parents and children, but parents have to be willing to work together, despite the differences that led them to divorce, in order to make that happen.