Many professions create impositions on conservators making a standard possession order inapplicable and unworkable. The Court may deviate from a standard possession order if the order is inappropriate or unworkable in reference to the schedules of both the conservators and the child. Unique professions and irregular school schedules for children allow the Court to have flexibility to deviate from a standard possession order that is in the Best Interest of the Child. There are multiple ways in which the Court may depart from a standard possession order to fulfill the needs of all parties involved with the custody of the child.
First, the Family Code § 153.254 states that the Court will be allowed deference to modify the standard possession order if work schedules of either conservators or the school schedule of the child is irregular. The Court must attempt to narrowly tailor the modifications to keep the new possession order as similar to the standard possession order as possible. This instance most commonly occurs when the Managing Conservator and the Possessory Conservator cannot reach an agreement and one of the two Conservators has a unique profession such as a firefighter, police officer, or airline pilot. The working hours of these jobs allow the Court to modify the standard possession order even if both of the parties do not comply with the changes. The modifications must be made only if it is in the Best Interest of the Child.
Secondly, the standard possession order may always be modified if it is by the mutual agreement of both the Managing Conservator and Possessory Conservator. Family Code § 153.007 is the Agreed Parenting Plan Statute and allows for both parties to agree on a standard possession order for the child. This statute was passed to promote amicability in settlement for child custody issues and to give flexibility to the parents if they are willing to agree on custody terms. The Agreed Parenting Plan must be in the Best Interest of the Child for the Court to approve. If the Court grants the Agreed Parenting Plan then the Managing or Possessory Conservator will have a remedy as a matter of law for any violation of the agreement committed by either party.
Finally, both Conservators may enter into a Mediated Settlement Agreement under Family Code § 153.0071. A Mediated Settlement Agreement is the only time in which the Court will NOT look at the Best Interest of the Child when granting the custody agreement.
The Mediated Settlement Agreement § 153.0071 must be:
- In bold, underlined, and capital letters that the agreement is NOT REVOCABLE
- Signed by Both Parties to the agreement
- Signed by the lawyers (if represented) of each party
The Mediated Settlement Agreement is binding and not revocable so if the Conservators wish to go this route they must understand that what is in the agreement will be held as binding. This method can be used to modify or change a standard possession order and the Court will not look at the Best Interest of the Child regarding the agreement, unless there exists a credible threat of domestic violence.
These are the methods in which a unique possession order may be obtained to accommodate irregular schedules or working hours of both the conservators. Any possession order must be correctly drafted and all future contingencies must be accounted for. An experienced lawyer must be contacted to safeguard an individual’s custody rights of their children and to make sure that a fair custody arrangement is obtained.
The Texas 87th session was very uneventful this year, with two additional sessions. Listed below are some new bills and bill revisions that passed this year for the Family Code:
- HB 3774: Effective September 1, 2021, The date of the marriage must now be included in all final decrees of divorce in an official court document. Proof of the length of marriage is required to apply for Social Security retirement benefits.
- HB 2926: September 1, 2021, Reinstatement of Parental Rights after Involuntary Termination. This is a new and significant procedure that allows certain people, including the Department of Family and Protective Services and a previously terminated parent, to move for reinstatement of their parental rights. Subchapter D added to Ch. 161 of the Texas Family Code, sets out the basic requirements for filing and hearing procedures.
- SB1936: September 1, 2021, expressly states the standard Possession Order that the alternative ending time for Monday school holiday and teacher in-service days is 8a.m. on the following Tuesday and if a conservator lives less than 50 miles from the other conservator, the court shall also award that conservator the alternative beginning and ending time for standard possession order. This award does not apply if the possessory conservator declines one or of the alternative times or possession is limited by the court in the best interest of the child.
*If the Possessory Conservator lives more than 50 but not more than 100 miles from the child’s primary residence, the law will not change: that parent may still opt into the Expanded Standard Possession Order (ESPO) – but it will not be automatic.
- HB 1012: September 1, 2021, Access to residence or former residence to retrieve personal property. If entry is denied by a current occupant, the denied person could seek a writ, authorizing them to go to the residence to get their possessions with a peace officer. If the property was listed in a Decree, relief can be sought in court granting such Decree.
- HB 3009: September 1, 2021, Child Custody evaluators must be able to communicate with a parent in their primacy language or have someone who can assist the parent in their primary language for Child custody evaluations.
This legislature Session caused a lot of “smoke” but “little fire” for Texas Family Law.
Nacol Law Firm P.C.
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Dallas, Texas 75231
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Holidays 2020 Visitation with your child could be difficult since “Normal” life for families has changed greatly with the threat of the Covid19 Virus. Now is the time to review your Holiday Schedule for visitation with your children and we suggest you review the specific provisions of your order concerning this 2020 Holiday Visitation.
NOTICE: In Texas, March 13, 2020, the Texas Supreme Court issued an Covid19- Virus Emergency Order: divorced /single parents should go by the originally published school and visitation schedule in their current decree. This includes Holiday Visitation Schedules. The Counties of Dallas, Collin, and Denton shortly after came out with standing orders regarding Exchanges relating to possession and access to children considered “an essential activity’.
The Holiday Visitation time is the most modified area in the Standard Possession Order.
Here is a reminder of the current Texas Family Law Code’s Standard Possession Order for the Holidays.
Texas Family Law Code’s Standard Visitation Guidelines for Thanksgiving:
The possessory conservator or non-primary conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years; The Holiday schedule will always override the Thursday or Weekend schedules.
Texas Family Law Code’s Standard Visitation Guidelines for Christmas Break:The possessory conservator or non-primary conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years;
The possessory conservator or non-primary conservator shall have possession of the child in even-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in odd-numbered years; The Holiday schedule will always override the Thursday or Weekend schedules.
The Holiday Season should be a happy time for but for families split by divorce, the emotional issues from the result of the break-up on the affected family can cause the joy of the season to be overshadowed by unhappiness and despair! Children need to have structure in their Holiday Visitation schedule to ensure that they will be able to see both parents and share the joy of the season with their entire family. The children are often the ones who suffer when the Holiday Visitation arrangement goes awry.
Unfortunately, many parents, wait too long to confirm visitation plans for the upcoming holiday season and with the current Covid19 Virus Pandemic, the family situation. If you cannot reach an agreement regarding visitation or believe you may be deprived of holiday visitation by the other parent, now is the time to contact an attorney. Time is short and Courts are already starting to overload with future visitation problems for the 2020 Holiday Season
The best gift of the holiday a child can experience is an early proactive arrangement of all holiday plans so everyone knows dates and times for visitation with both Mom and Dad. This Holiday Season vow to keep your child out of the middle of any family conflict and start to develop new holiday traditions with your child and family. Many parents have new relationships/marriages and other children in the family group. The new holiday traditions should include everyone and be a bonding experience for years to come.
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NACOL LAW FIRM P.C. , Dallas Family Law Attorneys (972) 690-3333
The possession order for both mother and father in any divorce must be in the Best Interest of the child and the Court has specific guidelines it must follow if both parents refuse to agree to custody arrangements. The Managing Conservator has primary custody of the child and the Possessory Conservator has visitation but is not the primary custodian of the child. The guidelines set forth by the Court regarding custody for parents living 100 miles or less of each other and parents that reside over 100 miles from each other are listed in the Family Code § 153.312 and § 153.313.
Family Code § 153.312 Standard Possession Order, regarding parents who reside 100 miles or less of each other, states the Possessory Conservator will have the following rights:
- Have custody of the child throughout the beginning of the year at 6 p.m. on the first, third, and fifth Friday of each month and ending at 6 p.m. on the following Sunday.
- On Thursdays of each week during the regular school term beginning at 6 p.m. and ending at 8 p.m. unless the Court finds this is not in the best interest of the child.
- Custody of the Child for 30 consecutive days during the summer but the Possessory Conservator will be required to give written notice to the Managing Conservator by April 1st of each year specifying the extended period of possession for the summer. If Possessory Conservator does not give written notice on April 1st, then the Possessory Conservator shall have access to the child from 6 p.m. July 1st to 6 p.m. July 31st of each year.
Family Code § 153.313 Standard Possession Order, regarding parents who reside over 100 miles from each other, states the Possessory Conservator will have the following rights:
- Have custody of child throughout the beginning of the year at 6 p.m. on Friday of the first, third, and fifth weekend of each month and ending at 6 p.m. that Sunday. The Possessory Conservator may also elect an alternate weekend if he/she gives a 14-day notice either written or telephonic to the Managing Conservator.
- The visitations on Thursdays nights are not mandated under this section due to the distance between the two parents.
- Custody of Child for 42 consecutive days during the summer but the Possessory Conservator will be required to give written notice to the Managing Conservator by April 1st of each year specifying the extended period of possession for the summer. If the written notice is not given then the Possessory Conservator shall have access to the child from 6 p.m. on June 15th to 6 p.m. July 27th.
The Court shall follow these guidelines unless it is NOT in the Best Interest of the child. These guidelines are needed because of the contention between both parents and the common inability to find a middle ground when it comes to custody of a child. The Court may deviate from these standard Guidelines but only if a parent can prove by clear and convincing evidence that it is in the Best Interest of the Child. If these guidelines are unworkable because of the child’s schedule then the Court will make exceptions but attempt to keep the custody arrangements as close to the guidelines as possible. Custody issues can be vexing and straining on both parents. To ensure you receive a fair outcome to see your child, it is wise to seek an experienced attorney to ensure that the sacred right to see your child is not infringed.
If only divorced parents could mutually agree on meaningful possession schedules while co-parenting their kids! But since many cannot or will not, the Texas Courts generally use a One-Size-Fits-All Standard Possession order for all children over three years of age. The Texas Legislature over time has expanded the schedule to make access a little more flexible. Does this always squarely meet or suit the needs of a child and her/his relationship with both parents?
The Section 153.001 of the Texas Family Code is the State’s policy on possession schedules and its formation:
Assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interests of their child;
Provide a safe, stable, and nonviolent environment for the child;
Encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved the marriage.
The Texas Family Code, section 153.002 also states that “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship, possession of, and access of the child”. Because of this the Texas Courts are given wide range in determining a child’s best interest in possession schedules.
What about fair and equal Parent Possession Schedules? This is easier desired than accomplished! In E. Mavis Hetherington’s book, For Better or for Worse, Three types of co-parenting relationships are identified:
Conflicted: Parents have frequent conflict, communicate badly, and have difficulty disengaging emotionally from the marriage (20-25%)
Parallel: Parents who emotionally disengage from each other, with little communication and who usually do not coordinate child-related issues between themselves although conflict is minimal. (Over 50%)
Cooperative: Parents who work together to actively plan their children’s lives and support each other. They work toward conflict free possession schedules in a nurturing parenting situation. (25%-30%)
Despite many separation and divorce related conflicts among parents, the main beneficial recipients of shared parenting are the children. When both parents are positively engaged in the parent-child relationship, probabilities are much higher for positive adjustment, better academic achievement and positive mental development of a child.
In Johnston & Campbell’s book, Impasses of Divorce, their findings support that the majority of parents substantially reduce their pre marital conflict within 2-3 years after divorce. Regrettably, 8%-20% of parents remain in a state of chronic high conflict!
How can Parents promote or enhance shared parenting in possession schedules?
Many parents will usually find a way or the mechanism to eventually work together for the benefit of the child, no matter how contentious the divorce. Even if shared parenting is not possible, parallel co-parenting reducing conflict may be acceptable. But if the parental conflict is high, try to use and enforce a possession schedule that limits parent contact during possession exchanges of the child and accordingly reduce conflict opportunity.
Parents: Leave your conflicts at home. You are divorced! Concentrate on what is best for your child. You are the lifetime primary example for your child on how families communicate. Be mature and responsible and show your child that no matter what has occurred in the past, and regardless of fault, your joint goal is an emotionally healthy child over the long haul.