Alex Hunt:
Welcome back to The Texas Family Lawyer Podcast. I'm Alex Hunt, I'm the managing attorney at Hunt Law Firm, and we've got offices in Katy, League City, Cypress and Sugar Land. And today, I am joined by senior attorney at Hunt Law Firm, Margaret Tucker. Welcome back.
Margaret Tucker:
Thank you.
Alex Hunt:
Margaret, we've talked in the past about child custody. Today, we're going to take a little bit of a deeper dive into one specific aspect of child custody, and that's the possession schedule and particularly a standard possession schedule, which is outlined in the Texas Family Code. And we're just going to do a deep dive.
So, let's jump right in. The standard possession order is essentially the default order that applies to every child custody order and it lays out who's going to have the kids and when. Tell me a little bit about the differences, the different types of standard possession orders, depending on how far you live from the other parent.
Margaret Tucker:
Okay. When I have somebody come into the office and we do a consult, that is one thing I always go over with them is that there is a presumption when you walk into court, that someone is going to be given a standard possession order. And so if you know what to expect from a court, then when you're either going to settle or you are going to a hearing or a trial, you kind of know what to expect that the court is going to do for one of the parents. The court is going to award the non-primary parent a standard possession order, and it's laid out in a way that it's a predictable schedule for everyone.
So, the standard possession order for under 50 is that the non-primary gets the children every single Thursday, starting when school lets out and then they bring the child back to school on Friday and then they get the child after school on Monday... excuse me, Friday until Monday morning. And on the off weeks, the second and fourth week, they get the child Thursday overnight.
Alex Hunt:
And what we're going to do is if you are listening to this as a podcast, you can go to YouTube and you can watch this video, and we're going to have on the screen a graphical representation that we've got on our website. If you go to FamilyLawyerKaty.com, click on the resources tab at the top, we have a standard possession order calendar that if you're a more visual learner, it lays it all out and highlights who has the kids and when.
We're going to put that on the screen of the YouTube video, and you can also go to FamilyLawyerKaty.com just to help you keep up with what we're talking about verbally. And it's important because there are a lot of nuances in the standard possession order and it takes a little bit of time to understand all of it. We're talking about zero to 50 miles. Go ahead.
Margaret Tucker:
So, if the two parents live within 50 miles, it is a presumption that they are just going to get the standard possession order. We call it an expanded possession order because of the pickup at school. And then Thursday is overnight. They, like I said, pick up from school on Thursday and return the child to school on Friday morning. That makes it an expanded, or you can also refer to it as a standard possession order with elections.
If they live within 50 miles of each other, the court is going to this to them. There has to be a reason not to. So, if people understand that if you go to court or you go to trial and the judge is going to do something like this, then you can kind of know what to negotiate when you're in mediation. It's very predictable.
Alex Hunt:
And it's called a rebuttable presumption, which means the court's going to presume that it's in the child's best interest, but it can be rebutted with evidence showing maybe this isn't going to work.
Margaret Tucker:
Correct.
Alex Hunt:
And there are plenty of examples that we have in our practice where it doesn't work. Say for example, we've got a client that works offshore and they're two weeks on and then two weeks are in the golf, that's not going to work for them. They need to have some sort of custom possession schedule or a lot of times there's work issues or there's reasons that they can't do, say, a Thursday night, something like that.
The key to remember is that a standard position order may be the default, but it doesn't have to be the order. And you can agree to anything else. If you and the other co-parent agree, you can agree to whatever you want and then present it to the court. And as long as the court feels that it's in the best interest of that child, which usually they do, with limited exceptions, the court will approve that. So, what else other than that first, third and fifth weekends, does expanded standard possession order have?
Margaret Tucker:
It has the holidays, so the non-primary parent gets 30 days. They're able to break it up into two different segments that have to be at least seven days long. So, you can pick maybe a June weekend, one June week, and then three weeks in July. Or the default is the whole month of July. Sometimes parents just do that because it's easier, but you get to choose as the non-primary parent.
Alex Hunt:
As long as you elect that time by April 1st, you can select whatever you want. Otherwise, it just defaults to July 1st to July 30th?
Margaret Tucker:
Correct.
Alex Hunt:
Okay.
Margaret Tucker:
And the primary parent then gets to pick a weekend inside of that time and they also get to pick one of the weekends that the non-primary has for an SPO week.
Alex Hunt:
So, they can have an extended vacation.
Margaret Tucker:
Sure. That's how they get their summer too.
Alex Hunt:
And they would need to make their election by April 15th.
Margaret Tucker:
Correct.
Alex Hunt:
That's the summer. What about holidays or other special days?
Margaret Tucker:
They rotate. Depending on the year, whether it's odd or even years, non-primary is going to be assigned odd years or even years, and the primary is going to be assigned odd or even years. They're going to switch off Thanksgiving. So, if one parent gets Thanksgiving, the other one begins Christmas vacation.
So, Thanksgiving is whenever the child gets out of school, it's usually a Friday, whenever they get out of school, that whole week of Thanksgiving and it ends on Sunday before they go back to school. And then the other parent is going to be the beginning of Christmas. Again, the day they get out for Christmas, which a lot of times is a Friday, until the 28th of December.
Alex Hunt:
So, they have actual Christmas.
Margaret Tucker:
They have the full of Christmas, and then it switches on noon on the 28th. And then the other parent, who had Thanksgiving, gets the second half of Christmas until the Sunday before school starts again. And then spring break, they switch depending on the year. Those are the main holidays that we consider. It's also Mother's Day and Father's Day.
Alex Hunt:
And when you say it switches depending on the year for spring break, that's odd even as well.
Margaret Tucker:
Again, yes.
Alex Hunt:
And then sometimes I'll have folks that'll add, it'll be kind of an SPO plus, where they'll add a few things in. If their Easter is particularly important to them, then maybe they'll add some language in about that. And then the standard possession order does guarantee the other parent at least two hours on the child's birthday, if they don't have them during that time.
So, that is a standard possession order with elections, you're guaranteed that if you live within zero to 50 miles of the primary conservator; 50 to 100 miles away, the non-custodial parent has a choice. They can have all the elections if they want or they can have just a regular, unexpanded standard possession order. And then a hundred miles plus the presumption is just a regular standard possession order. Tell us a little bit about the difference between an expanded standard possession order with elections and one without elections.
Margaret Tucker:
We kind of consider it like, we'll call it the basic SPO, it's without elections. A basic SPO is the standard possession order that was in place a few years ago, and what it gives is Thursday night, the non-primary parent gets a child from six to eight. It's maybe a dinner time on Thursday nights, and then on Friday they get the child at 6:00 PM, and then they get the child till Sunday night at 6:00 PM. So, it's more limited, but it also kind of works with people's work schedules, if you're out of town, those kind of things.
That's why it is part of the over a hundred miles language because here we are in Houston and maybe a non-primary parent lives in Austin. Well, they can come in first, third and fifth weekend, so they can still do the whole basic standard possession order, but maybe the person were in Houston and the non-primary lives in Chicago, it's going to be much harder to get to that child. So, they may elect to only do one weekend a month instead. And when you're over a hundred miles, you get instead of 30 days during the summer, you get 42 days during the summer.
Alex Hunt:
And it's a lot of time. And generally, a standard possession order, I've heard different numbers and it really depends on the year, but a basic standard possession order is probably going to get you around 42%.
Margaret Tucker:
An expanded is about 42/58%, depends on the year, depends on the holidays, depends on the number of fifth weekends that the non-primary is going to get because they get first, third, and fifth weekends. And so it depends if there are more fifth weekends in that year, how the holidays, how weekends fall, all of those kind of make the percentages switch. But yes, what I usually tell people it's about a 42/58% split for an expanded. And then when you go back to a basic standard possession order without elections, about a 70-30 split time-wise.
Alex Hunt:
And it's different time, the primary custodial parent is going to have a lot of the we're coming to school, we're coming home, we're doing homework, we're eating dinner, we're going to bed. The non-custodial parent is going to have a lot of their time that is accumulated in large bunches when the child is not going to be in school. Of course, they'll have their Thursdays during the school year and they'll have their first certain fifth weekends, but they get a big bulk of their time in the summer, and they're sharing the rest of the holidays. So, a lot of that time comes in the summer to make up for the time that they might not have gotten during the year.
Margaret Tucker:
Correct.
Alex Hunt:
I think one of the really cool things about the standard possession order that we see in Texas is that at the beginning, before the standard possession order gets into the legalese, one of the things it says is, "In the absence of an agreement otherwise, this will be the order." And so what that means is that if the parents can agree on something else at any time, they don't have to worry about the terms of this standard possession order.
And I've said this in a previous podcast, but I have had clients that have taken their order, they've gotten a certified copy and they put it in a drawer and it's collected dust because, and this is not everybody's situation, they have had a co-parenting relationship where they can get together and they can make agreements for their child's best interest. That is ideal, but that's not everybody.
And in the event that you don't have a co-parent where you can do that, then this is what you default back to in case there is no agreement. And that's why it's so important is so that way if there's not an agreement, you've got something that guarantees what your schedule's going to look like.
So, those are your standard possession order. Different schedules, depending on where you live, depending on your work schedule, you could do a standard position order with elections, without elections. What would you say... What is the frequency in your practice that you're seeing standard possession orders versus a more customized schedule?
Margaret Tucker:
I would say I encourage to do standard possession orders more because it is what a court would do. It's very predictable and if there are any problems, if you do have to go back into court, the court knows exactly what the schedule is, they know exactly how to handle it, that kind of thing.
But it's okay to stray from that, as long as you have agreements of the party. I would say the most that I have seen other than a standard possession order is a 50/50 split. And that's probably the next step of what people agree to do is a 50/50.
Alex Hunt:
So, let's dive into these custom schedules, which again, like you said, courts can divert from the standard possession schedule a little bit. But in my practice, it isn't very often and there's got to be a really good reason. And that's what the law says too, that the standard possession order needs to be specifically ruled by that court that it is inappropriate or it is unworkable.
And we've had cases where it has been inappropriate or unworkable. What are some of those instances where you've seen the party say, "This isn't going to work." Or the courts say that? What does the schedule usually look like where we've had to do something different?
Margaret Tucker:
Okay, well, being in Houston, we're a big oil area. I've seen a lot of different type of oil rig type jobs where they go out on the rig for two weeks and then they're off for two weeks. Well, you can't have possession of a child if you're out on the oil rig. And even if you were able to designate a competent adult to take your place, you're missing time with the child. And so you want your time with your own child. I've seen courts, if they're going to have to deviate from a standard possession order, they're going to do a certain custom schedule that allows somebody who has a job like this to see their child. They're going to encourage it, for sure.
So, oil rigs or firefighters, a lot of times they work 24 hours and then they're off, I believe 48 hours, or sometimes doctors are on call. I've seen a lot of different ones. The 50/50, some parents really... it kind of breaks their hearts not to see their child once a week at least. So, they do a 2-2-3 type schedule, where they rotate like that.
Alex Hunt:
Yeah, we see that a lot where at least sometimes clients will want to do a 50/50 and really there's only... When we say 50/50, it means 50% with one parent and 50% with the other parent in terms of possession time. And a lot of people will come to us and they equate 50/50 with joint custody. Texas doesn't have joint custody. We have joint managing conservatorship, but that's really a different question as to the possession time.
And so just because you're joint managing conservators, that doesn't mean you're going to be 50/50 on the parenting time, but sometimes people will come to us and there will be an agreement and they'll say, "We want to do 50/50." And that could be laid out a couple of different ways. The first common way that we see it is week on, week off. What does that look like?
Margaret Tucker:
I will say the most common I see is a Sunday night switch. So, one parent takes the child starting Sunday, maybe 6:00 PM, and they have them the entire week until the next Sunday at 6:00 PM, and they switch. And they'll still put in for holidays and that kind of thing, or maybe extra time during the summer. But usually during the school term, they do a 50/50.
Alex Hunt:
Okay. And the next way that you can do a 50/50 that we see commonly is what's called a 2-2-3, or sometimes it'll be a 2-2-5, and there's different names for it. But essentially what that is Monday and Tuesday, parent number one will have the child. Wednesday, Thursday, the other parent will have the child. And then Friday, Saturday and Sunday they'll switch off depending on the week. There are some pros and there are some cons that are associated with that. Talk to me a little bit about some of the pros of a 50/50 or a 2-2-3 schedule.
Margaret Tucker:
I think parents who choose 2-2-3, they like the fact that they get to see their child every week and spend days with their child every week. For that purpose, I think they really like 2-2-3. The week on, week off, people like the fact that they have time that is not back and forth. They have a whole week by themselves and then the child goes for a week. So, you kind of can plan more with your schedules. You see your child for seven straight days without anybody being in the middle, that kind of thing. I think they find those are positives for the week on, week off and 2-2-3s.
Alex Hunt:
And some of the feedback that I've gotten from judges over the years, and I've really never met a judge that has said, "I like 50/50s." It's usually just varying degrees of how much they dislike 50/50 schedules. But the main feedback that I've gotten from them has been that the child doesn't feel like they have a home base, they don't have a home, they're just constantly being shuttled back and forth. And with a 50/50, there is a feeling that they're not having frequent enough contact with the other parent during that time. So, you'll go an entire week, which is great for that parent while you have them. But then in a standard position order, you would have during the school year that every Thursday. You don't have that with a week on, week off, and you want to have more regular, frequent contact with the other parent.
And then the other feedback with something like a 2-2-3 is that the child is just constantly moving back and forth. So, they're two days in one place, two days in another place, three days in another place, two days in another place, and they're really never anywhere longer than two to three days. And then you get the situation where the child is kind of living out of a suitcase because they don't have a home base.
And it's the reason that a lot of courts don't like it. It's the reason that a lot of the courts, even if there is an agreement, the courts, if they can, will overrule it. Now, there's procedures that we use, like an immediate settlement agreement, to lock the parties in and the court can't overrule it, but we've certainly had situations where if you don't have an immediate settlement agreement, the court will say, "I don't think this is in the best interest of the child, and so I'm not going to approve it." And they'll really push back on it.
Margaret Tucker:
To add to that, I think a lot of times courts won't do the 50/50 because in most relationships there usually is a primary parent, and that's the one who goes out and signs the kids up for extracurriculars, that's the one who goes out and signs the kids up to do different programs, takes some places-
Alex Hunt:
And it doesn't mean they're the better parent, it just means that they handle some of the logistics and it is what it is. And sometimes there is a co-parenting relationship where there is an equal distribution of handling those things. But most of the time, like you said, there is one parent that is handling setting up doctor's appointments, taking the kid to doctor's appointments and signing the report card, or I guess it's outdated, the report card, it's all online, but those types of responsibilities.
Margaret Tucker:
And a lot of times with a 50/50, then the discussion starts that no child support will be given. And that kind of opens up a whole new window of: are both parents able to support the child during their time? And that kind of thing. So, that's when we start opening up can of worms for other things.
Once somebody agrees to a 50/50, other things come with it too. So, there's a lot to consider. And those are some of the reasons I don't think courts have given into those yet. And if people are doing it, they may continue it, but I haven't really seen a lot of courts order them.
Alex Hunt:
Yeah, no, I agree. And so we spent a lot of time talking about the standard possession order and how it's the default and how it's what the court's usually going to do. And then we said, "Well, you can reach an agreement, you could do something else, like a 50/50." But now the big caveat is that if this child is under three years old, there is a provision in the Texas Family Code that the court should render an order that is appropriate for that child and that it may not be, and likely is not, a standard possession order. Tell me what you've seen... Tell me a little bit about an under three order and what you've seen in your practice.
Margaret Tucker:
Okay. An under three order is the court's going to look at a whole bunch of factors. They're going to look at things like, "What happened before you came to court? How did y'all take care of the child before when maybe you were married or together as a couple? Who would primarily take care of the child? Were there overnights with that child? Who's set up to have an overnight?" Because we are talking about some children that are itty bitty babies. I mean, you're talking about a three-month-old baby. Is both houses able to take a three-month-old baby? Are there cribs? Is there formula set up? Are there car seats in the car?
Alex Hunt:
Is the mom still breastfeeding?
Margaret Tucker:
Yes.
Alex Hunt:
I mean, you can't have a three-day period of possession for dad if mom is still breastfeeding, unless you make provisions for that. And the mom agrees to pump and store and do all that, which I don't know if the court can order to do that. So, those are all things that the court needs to take in consideration. And there's a difference between a three-week-old and a three-month-old and a three-year-old.
And if anybody's watching or listening and you're interested in the full list of criteria, there's 13 different criteria that the court uses in determining what a good under three schedule would be. You could just Google Texas Family Code Section 153.254, and you have all of the list of what the court's going to consider, including the emotional needs of the child, the behavioral needs, the physical needs, whether the siblings are going to be present, whether there's going to be caregiving provided to the child before enduring the current suit, the continuity of the child's routine. All these things are going to be considered.
What have you seen generally, say you've got that six-week-old, what are you seeing courts generally ordering, at least in our area, in the Houston area for under three that's about six-weeks-old, I'll say?
Margaret Tucker:
I don't see a lot of courts award a specific schedule. I see most of the courts award the standard possession order. I mean, I think it's more common for that. I think the courts feel like if the non-primary parent is able to take the child and is completely set up to take that child, whether they're two-weeks-old or whether they're almost three years old, I feel like the courts are kind of like if the non-primary can take them and they're going to be around and they're going to give love and time to this child, then I feel like they want to give as much time as possible to that non-primary parent.
I have seen some under three awarded, but not very common. And what it usually entails is maybe Saturdays, instead of doing a SPO weekend that has overnights, they usually do Saturday from 10:00 to 5:00, and they don't do an overnight as much. So, it's limiting the overnights is mainly what it is.
Alex Hunt:
And I've also had some courts that have granted short bursts of very frequent contact for the non-custodial parent, and typically, not in every case, but typically when we're talking about an under three schedule, we're talking about the primary custodian being the mom because if they're still breastfeeding, then that's a physical consideration that needs to be made. But what it would look like is maybe every evening from 5:00 to 7:00 PM, the dad's going to be able to see that child.
We don't get a ton of cases where you've got a six-week-old involved, but in a case where you have a really young child like that, my understanding of the state-of-the-art emotional development, physical development is that there needs to be frequent contact. You can't go a week with one of the caregivers not seeing that child. And so although it might be not ideal for the parents because there might be travel time and they might not want to see the other parent every day for that child, and it's all about the best interest of the child, it's going to be ideal for really frequent contact, even if that means that it's going to be daily. And I've seen courts do that, especially for that very critical time in the early part of the child's life.
Margaret Tucker:
Definitely.
Alex Hunt:
Well, we've talked a little bit about 50/50 schedules and under three schedules, we've talked about the standard possession order. Is there anything that you think folks need to know about or that we missed?
Margaret Tucker:
No. I mean, I would just say overall I have clients come in or they're coming in for a consult and they'll say, "I don't think he can handle having the child. I don't want him to see the child." Or, "I want to limit his time with the child." I think the part we need to realize is that these parents respect each other and they need to respect each other as parents of the child. And it took two to create the child. And so the court wants both parents as involved as possible.
And so if you know the predictability of a court awarding a standard possession order, then you can kind of work backwards to tailor it, if there are specific circumstances that you may need to change days or something like that. But it makes it more reasonable when people come in and know that this is likely what a court would do, so let's work from there because the court is, unless there's circumstances otherwise, the court is going to award time and they're going to want... It's going to be in the best interest of the child to see both parents on a very continuous basis. And so they're going to award that standard possession order. So, let's try to work together to come up with a schedule that works for everybody.
Alex Hunt:
And I think there's a recognition too in most of the courts, they need to protect the best interest of the child, including emotional health and the physical wellbeing. But that sometimes the status quo, when it changes, that the other parent maybe hadn't stepped up the way the co-parent wanted them to in the past, but they need to be given some opportunity to prove themselves.
And so if you say, "Well, one parent handled everything, including all of the educational stuff and the doctor's appointments and all that." Well, if you were a married couple or you were a couple that was together and that was your agreement, it really isn't fair and it doesn't make sense to say that the other person isn't going to have any rights or duties or anything related to that stuff. They need to have an opportunity because now the status quo has changed. They need to have an opportunity to step up because the agreement is no longer there, and they deserve a right to be involved too.
In an ideal world, both parents can co-parent together, reach decisions on things, kind of put aside their personal relationship or animosity or whatever they went through, and put their child first. And in the event that they can't or won't, then that's what the court's there for is to put an order in place. And that's why it's so important to have a lawyer that's going to advocate for you to make sure that the court sees your story and hears your concerns about this child and orders something that you know, because the judge is going to see this much of your life. They're going to see this much of what makes your child who they are. And so you need somebody that can advocate and tell the story to the judge in court and get something that you know is going to be in their best interest because you know what's in your child's best interest way better than a judge or a jury ever will be able to, no matter how long the trial is and how good they are.
Well, Margaret, thank you so much for coming back to the podcast. And if you're listening and if you're watching this, again, go to FamilyLawyerKaty.com, go to our resources tab. You can see this year, the standard possession order schedule. You can see previous year's standard possession order schedule, just to get an idea of what it looks like. And you can also see on our website, if you click on the blog at the top, you'll see a number of articles about child custody, including the standard possession order schedule, custom possession schedules, and the under three schedule. We have tons of information on there, and you can also go on the search bar and search for whatever you're looking for.
If you're looking to do a consult with me or with Margaret, you can visit our website. You can call us at (832) 315 5494. We're happy to have a consultation and talk about your specific situation and tell you about what the process looks like and how we can advocate for you. So, on behalf of myself, behalf of you, Margaret, thank you for joining us, and come back and see us next time.