Best Interest of the Child
One of the most vital (and potentially contentious) aspects of a divorce settlement concerns “parenting time.” Everyone has heard “primary parent,” “joint custody,” or even “weekend dad” tossed around, but how much truth—or misinformation—underlies these phrases?
The Texas courts (and legislature) have established basic public policy regarding suitable time children should spend, after a divorce, with parents. The overarching concept is simple. For parents able to act in the best interest of their child (or children) and to provide a safe environment, children should have “frequent and continuing” contact with each parent.
The best interest of the child will always exist as the barometer by which the Court measures appropriate parenting plans and potential “possession”. In a perfect world, the child’s best interest would also be the parents’ primary focus, but often the immense stress, frustration, and emotion surrounding the divorce process serve as an impediment to even the most well-intentioned parent.
Why is a Decree Necessary?
Most psychologists and counselors stress the importance of stability and consistency when it comes to parenting a child, especially when children are young. When parents are not able to agree between themselves, the decree provides the rules they must operate under, and the law gives those rules teeth by establishing stiff consequences for when those rules are broken—this creates accountability; accountability leads to predictability; predictability allows parents to create an environment of stability and consistency.
If a dad tells his daughter that he is going to try to make it to her school band concert, but he fails to show, the consequence for dad is dealing with a disappointed daughter; if a decree orders dad to drop his daughter off at mom’s house for Spring Break, but he decides to take her on a 7-day road trip to see Taylor Swift at Radio City Music Hall, the consequence for dad could be contempt and jail time for intentional interference with mom’s legal right to possession. The decree provides structure, consequences, and most important, predictability. When it is necessary, the decree is invaluable.
That said, the decree is essentially a legal backstop that is more a function of the way our judicial system works than a roadmap to the path of a life well-lived post-divorce. A mom and dad caught in the quagmire of a legal battle concerning child-related issues can overlook or forget that the legislature has specifically crafted possession laws such that parents are ultimately permitted to parent (think verb)—in other words, the highest aim is agreement and follow-through.
If two parents can agree (*in writing), to a possession schedule post-divorce that incorporates new realities as they occur, what the actual paper with the Judge’s signature says about who picks up from school on Wednesdays doesn’t actually matter.
As parenting well is the utmost goal, integrating new “rules” to allow for life to occur as seamlessly as possible always wins. If parties are able to exit a divorce and never look back at the decree when dealing with the other parent on possession—which includes soccer games, band practice, tutoring, karate, sleepovers, and all the other exciting and exhausting things that go into the daily life of raising children—they are shining examples of what the legislature envisioned.
The goal of a decree is to function as a basic framework that allows parents to agree in real-time on everyday minutiae; this is also what most family law judges hope will happen after they sign off. The more parents who reach for agreement first, the better for all involved, most notably, the child.
What is Standard Possession in Texas?
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 reach agreements on the possession before a final order is signed that is uniquely suited to their goals and circumstances—for instance, a child spending equal amounts of time with both parents under an alternating week-on/week-off schedule, or under a 2-2-5 schedule (Mom gets every Monday/Tuesday; Dad gets every Wednesday/Thursday, and Mom and Dad alternate every other weekend)—many will need a standard to follow.
Just as parents are free to mutually agree to changes after a decree has been signed, parents are likewise free to craft a possession schedule that is put into the decree that varies from standard possession. However, it is important to realize that the legislature has dictated, and courts are bound to accept, that the statutory standard possession schedule is presumed to be in the best interest of every child whose parents are involved in a custody proceeding in Texas. As such, the vast majority of decrees and custody orders contain standard possession.
What are the specifics of Standard Possession in a Texas Decree?
The standard possession schedule 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 and the standard possession schedule specifically designates weekday and weekend possession time for one parent, while giving the other parent all other possession time not otherwise designated.
This means that during the school year, one parent will have a larger amount of overall possession time than the other parent. In order to simplify and distinguish between parents when illustrating what a standard and expanded standard possession schedule look like, the “non-custodial parent” (NCP) refers to the parent who is given specifically designated periods of possession, and the “custodial parent” (CP) refers to the parent who has possession at all other times not otherwise designated.
When the parents reside within 100 miles of each other, under standard possession, the NCP has possession beginning at 6:00 p.m. on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday. The NCP also has possession every Thursday night from 6:00 p.m. to 8:00 p.m., but these Thursday periods of possession are only during the school year.
Under an expanded standard possession schedule, the NCP’s Thursdays begin at the time school lets out and ends at the time school resumes on Friday morning, while the weekend periods of possession (still 1st/3rd/5th each month) begin when the child’s school lets out on Friday instead of 6:00 p.m., and they end on Monday morning when the child’s school resumes. This gives the NCP an extra overnight of possession each week on Thursday night and again on Sunday night on the 1st/3rd/5th weekends—this also means that the NCP is responsible for getting the child to school on those Friday and Monday mornings.
Under the standard, on holiday weekends where the NCP has possession (such as Labor Day or MLK Day), the possession period extends an additional day, so possession on a weekend with a Monday holiday, for example, ends at 6 p.m. on Monday. Under an expanded standard schedule, using the same example as above for a Monday holiday, the ending time would extend to Tuesday morning when the child’s school resumes.
When parents reside more than 100 miles from one another, the regular weekend and Thursday periods of possession are slightly different. The NCP has the option of choosing to stick with the standard 1st/3rd/5th-weekend schedule, or the NCP can elect a single weekend (with fourteen days’ written notice to CP) on which to exercise possession each month. Additionally, due to the logistical constraints created by the distance between residences, the NCP is not entitled to the Thursday periods of possession during the school year.
What about Possession during the Holidays?
For Spring Break, if the parents reside within 100 miles of each other, the NCP is entitled to possession in even-numbered years beginning at 6:00 p.m. on the day the child is dismissed from school for Spring Break (or alternatively, beginning at the time the child’s school is dismissed for Spring Break under an expanded standard schedule) and ending at 6:00 p.m. on the day before school resumes after that vacation. If the parents reside more than 100 miles from each other, the NCP would be entitled to possession during Spring Break in every year as opposed to just even-numbered years.
The rules governing certain major holidays show how equitable the Texas Family Code tries to be. These holiday provisions supersede the regular weekday and weekend periods of possession and also apply regardless of how far apart the parents reside. For the Christmas holiday in even years, the NCP gets possession from the day school lets out for Christmas break until December 28th at noon, and the CP gets possession from December 28th at noon until 6:00 p.m. on the day before the child’s school resumes after Christmas break.
These two periods are then flipped in odd-numbered years so that the CP gets the first half of Christmas break and the NCP gets the second half. For Thanksgiving in even-numbered years, the CP gets possession (which will vary somewhat depending on the specific school district’s calendar) beginning at 6:00 p.m. on the day the child is dismissed from school for the Thanksgiving holiday and ending at 6:00 p.m. on a Sunday following Thanksgiving. In odd-numbered years it flips and the NCP has possession over Thanksgiving. This holiday schedule is arranged so that in a single year, one parent gets possession on Thanksgiving Day and the other parent on Christmas Day—this allows parents to plan extended family celebrations around these major holidays ahead of time. 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.
What about Possession in Summer?
The NCP is entitled to a period of extended summer possession consisting of 30 days of possession that can be exercised in either one or two blocks of time. The 30-day extended summer possession was created as a way of equalizing the total amount of quality time each parent has with the child over the course of an entire year.
“Quality time” is considered to be when the child is not in school or sleeping. 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 submit specific dates to the CP by April 1, then the NCP’s extended summer possession period defaults to 6 p.m. on July 1 through 6 p.m. on July 31. If the CP gives notice by April 15, the CP can choose to carve out one weekend period from the NCP’s extended summer possession period.
Additionally, since the NCP continues the regular 1st/3rd/5th weekend periods through the summer months (which begin and end at 6:00 p.m. on Friday and the following Sunday since school is not in session), the CP is also entitled to take away one weekend that the NCP would otherwise be entitled to possession—this ensures that the CP also has an extended period of uninterrupted possession time during the summer for planning vacations, visiting family, or traveling.
For parents residing more than 100 miles apart, the extended summer period is modified slightly to provide 42 days of possession for the NCP. These extra 12 days are intended to “make up” the Thursday periods that the NCP loses during the school year.
It is important to remember that although the standard possession schedule is presumed to be in a child’s best interest, parents are always permitted to explain why the deviation from the standard schedule may be warranted given the specific facts and circumstances of the case. Additionally, the law specifically states that this presumption only applies when a child is three years of age or older. In situations where the child is under three years old, the courts are given much broader discretion in crafting a possession schedule that is appropriate under the circumstances and accounts for the age and specific needs of a newborn or toddler.
While the standard possession schedule can seem confusing and appear at first glance to heavily favor one parent, a step back reveals how the schedule unfolds over the course of multiple years. Most parents come to realize the schedule is designed to reduce confusion, provide a sense of stability and consistency, distribute quality time evenly, and ensure that each parent maintains frequent and continuous contact with their kids.
Whether you are a parent on the cusp of divorce or through a divorce and in need of modification to a possession schedule, knowing where to turn and what questions to ask makes all the difference. Talk to one of the experienced family lawyers at Hance Law Group to ensure that you receive the information you need to accomplish your specific goals.