A STEP TOWARD EQUALITY IN SHARED CUSTODY OF CHILDREN AFTER DIVORCE
For years the default possession order under Texas law was a 75/25 split between parents, but as of September 1, 2021, two new provisions in the Texas Family Code make the default custody order closer to a 50/50 split between divorced parents. These two new provisions apply to custody cases pending on September 1, 2021, and those filed on or after that date.
What is a possession order?
A possession order, often incorporated in a divorce decree, states when each parent (and in some instances a nonparent) has the right to time with a child. There are several types of possession orders in Texas:
- Standard Possession Order
- Modified Possession Orders
- Possession Orders for a Child Under 3
- Supervised Possession Orders
What is the Standard Possession Order?
In Texas, the law presumes that the Standard Possession Order is in the best interest of a child at the age of three or older. The Standard Possession Order says that the parents may have possession of the child whenever they both agree, or if the parents do not agree, the noncustodial parent has the right to possession of the child at the times provided for in the Texas Family Code.
Possessory Conservator
Possession orders typically will designate a managing conservator and possessory conservator. A possessory conservator is a person with the right to visitation. If one parent is named sole managing conservator, the other is typically named a possessory conservator. If a nonparent is named sole managing conservator, often both parents will be possessory conservators.
A parent named possessory conservator shares with the managing conservator the rights and duties to:
- Receive information from any other conservator about the child’s health, education or welfare
- Confer with another conservator as much as possible before that conservator makes a decision about the child’s health, education or welfare
- Access the child’s educational records, and consult with school officials about the child
- Attend the child’s school activities
- Be listed as an emergency contact for the child
- Manage the child’s estate, if it was created by the parent or the parent’s family
- Access the child’s medical records, and speak with medical professionals treating the child
- Consent to non-invasive medical care (and invasive care, in emergencies) when the parent has possession of the child.
- Direct moral and religious training of the child when the parent has possession of the child.
- Care for, control, protect and reasonably discipline the child when the parent has possession of the child.
- When the parent has possession: Support the child — including providing clothing, food, shelter and non-invasive medical and dental care — when the parent has possession of the child.
Custodial and Noncustodial Conservators
The Texas Standard Possession Order uses the term “managing conservator” to mean “custodial conservator” and “possessory conservator” to mean “noncustodial conservator.” The custodial conservator has the right to choose the child’s main residence. The child then lives with or has visits with the “noncustodial” conservator during the times designated in the possession order. Typically, the custodial conservator is required to live within a certain geographic area, such as a county, to make movement between homes easier.
The New Family Code Provisions
1) Alternative Beginning and Ending Possession Time New §153.317(a)(9) provides:
When the possessory conservator has the Standard Possession Order and a school holiday occurs on a Monday following a weekend period of possession, rather than returning the child at 6 p.m. on Monday, under the new law, the possessory conservator may elect to return the child on Tuesday morning. This new provision adds more overnights to the possessory conservator’s possession time, with the number depending on the applicable school calendar.
2) Beginning and Ending Possession Time for Parents who Reside 50 Miles or Less Apart Section 153.3171 provides:
If the possessory conservator lives 50 miles or less from the child’s primary residence, the Expanded Standard Possession Order (“ESPO”) will apply, unless the possessory conservator opts out. The ESPO provides that the possessory conservator has the right to possession of the child as if the possessory conservator had made the elections for alternative beginning and ending possession times under Sections 153.317(a)(1)(C), (2)(C), (3), (4), (5), (6), (7)(C), (8), and (9). This provision increases the possessory conservator’s time with his or her child to 46%.
The ESPO beginning and ending possession times under Texas Family Code Section 153.317(a) are as followed:
(1) weekend periods of possession under Section 153.312(a)(1) during the regular school term: (C) begins at the time the child’s school is regularly dismissed and ends at the time the child’s school resumes after the weekend.
(2) Thursday periods of possession under Section 153.312(a)(1) (C) begins at the time the child’s school is regularly dismissed and ends at the time the child’s school resumes on Friday.
(3) spring vacation periods of possession under Section 153.312(b)(1), begins at the time the child’s school is dismissed for those vacations.
(4) Christmas school vacation periods of possession under Section 153.314(1), begins at the time the child’s school is dismissed for the vacation.
(5) Thanksgiving holiday periods of possession under Section 153.314(3), begins at the time the child’s school is dismissed for the holiday.
(6) Father’s Day periods of possession under Section 153.314(5), ends at 8 a.m. on the Monday after Father’s Day weekend.
(7) Mother’s Day periods of possession under Section 153.314(6) (C) begins at the time the child’s school is regularly dismissed on the Friday preceding Mother’s Day and ends at the time the child’s school resumes after Mother’s Day.
(8) weekend periods of possession that are extended under Section 153.315(b) by a student holiday or teacher in-service day that falls on a Friday, begin at the time the child’s school is regularly dismissed on Thursday.
(9) weekend periods of possession that are extended under Section 153.315(a) by a student holiday or teacher in-service day that falls on a Monday, end at 8 a.m. Tuesday.
A court can override the new law if it is not in the best interest of the child. Among the reasons the ESPO might not be in the child’s best interest are:
The ESPO is unworkable or inappropriate given the circumstances of the area or the parties.
Before the suit, the possessory conservator had not frequently and continuously exercised parental rights and duties, precluding someone who is a biological parent but is actually a stranger to the child from automatically having a virtually 50/50 custody order.
NOTE: When the possessory conservator lives more than 50 but not more than 100 miles from the child’s primary residence the Standard Possession Order will apply, but that parent may still opt into the ESPO.
