In a divorce that involves children, often one of the biggest issues is visitation. Cases that do not result in joint custody will usually feature some form of visitation guidelines. Child visitation in Texas is called “possession and access,” and each parent, regardless of their conservatorship designation, has the right to possession of and access to their minor child. This may change if one parent is designated as an unfit parent, such as in cases of domestic abuse, family violence, or neglect. However, this article will focus only on situations where both spouses are considered fit and capable parents.
As part of the basics of Texas divorce policy, divorce decrees must outline a possession schedule which is called a “possession order.” The possession order lays out the specific days and times that each parent is entitled to possession of and access to the child, including special treatment for school breaks and holidays.
Chapter 153 of the Texas Family Code outlines a “standard possession order” (“SPO”) that is designed for children three years of age or older. Tex. Fam. Code §153.251(d). Parents may adopt the SPO or make a custom possession order tailored to fit the needs of their family. This article is aimed at providing an understanding of the SPO and giving an overview of some of the most common custom orders involving child custody law.
As we get started, it is important to know that Texas takes parental equality and parenting plans very seriously. Texas public policy is clear that children should have frequent and continuing contact with both parents, as long as they act in the best interest of the child. Tex. Fam. Code § 153.001. Further, all visitation determinations are based on what is in the best interest of the child, and the courts are given a wide latitude in determining what those best interests include. Tex. Fam. Code § 153.002; Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). The courts may not consider the sex of either parent when it comes to making a custody determination, however the law does not require an award of equal, or even nearly equal, periods of visitation for each parent. Tex. Fam. Code §§153.003(3), 143.135.
While conservatorship designations do not control the visitation schedule, the primary designation under conservatorship does. Payment of child support does not automatically guarantee conservatorship designation or favorable parental visitation rights. When parents are named joint managing conservators, one parent is designated as the parent with the exclusive right to determine the child’s primary residence. For purposes of this article, we will refer to that parent as the “primary parent” and the other parent as the “non-primary parent” to help distinguish visitation rights, although these roles may be referred to as “custodial parent” and “noncustodial parent” elsewhere. Alternatively, if parents are not named joint managing conservators and, rather, managing conservator and possessory conservator, then the managing conservator is the primary parent and the possessory conservator is the non-primary parent. The child is with the primary parent at all times that are not awarded to the non-primary parent. Establishing parental visitation rights are also vital in case visitation issues or physical custody issues arise.
The Texas Standard Possession Order (“SPO”) was recently updated. As of September 1, 2021, the SPO awards the following days and times to the non-primary parent on a regular weekly basis (Tex. Fam. Code §153.312):
While the Texas SPO provides that all periods of possession by the non-primary parent begin and end at 6:00pm, the law allows for this to be extended to provide the non-primary parent significantly more regular time with their child. This option is referred to as an Expanded Standard Possession Order, or “ESPO” for short, and provides the following:
In a regular month, this expanded SPO gives the non-primary parent not only Thursday and Sunday overnights with the child, but also, in practice, Thursday afternoon through Monday morning on his or her designated weekends.
With proper and timely notice given to the primary parent, the SPO awards the non-primary parent 30 days over summer vacation from school. Tex. Fam. Code §153.312(2)(A). If the non-primary parent fails to provide the proper notice required, he or she is still entitled to 30 days of visitation over summer vacation, although now it is designated to take place for the full month of July in that same year. Tex. Fam. Code §153.312(2)(B). The notice requirement is on a year-by-year basis, so failure to give notice one year does not preclude a parent from properly notifying the primary parent in future years.
The primary parent is awarded one weekend of visitation during the non-primary parent’s extended summer visitation with proper notice. Tex. Fam. Code §153.312(3).
The new parental rights rules that went into effect on September 1, 2021, added provisions for when parents live 50 miles apart or less, where before the only distance that was accounted for was when parents lived over 100 miles apart. The new rules state that if the non-primary parent lives 50 miles or less from the child’s primary residence, the ESPO will automatically apply, unless the non-primary parent opts out of one or more of the alternative beginning and ending times, reverting to the SPO. Tex. Fam. Code §153.317. This new standard provides the non-primary parent with a floor of 46% of possession time at a minimum, automatically bringing the parents closer to a 50/50 division of time with their child.
The SPO has a few changes for parenting plans when the non-primary parent lives over 100 miles from the child’s primary residence, as follows (Tex. Fam. Code §153.313):
The Texas Family Code outlines holiday possession that is not affected by the distance between the parents’ homes—these are treated the same whether the parents reside next door to each other or across the country from each other. The holiday possession times supersede conflicting weekend or Thursday periods of possession, and then once the holiday period is over, everyone will revert back to the SPO. Tex. Fam. Code §153.314. Here is how holidays are awarded:
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HOLIDAY |
Primary Parent |
Non-Primary Parent |
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Christmas School Vacation: Even-numbered Years |
December 28 through the day before school resumes
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Day school is dismissed through December 28
|
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Christmas School Vacation: Odd-numbered Years |
Day school is dismissed through December 28
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December 28 through the day before school resumes
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|
Thanksgiving |
Even-numbered Years
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Odd-numbered Years |
|
Child’s Birthday |
All day, except for 6:00pm-8:00pm.
|
6:00pm-8:00pm
|
|
Father’s Day |
For Father: 6:00pm Friday to 6:00pm on Father’s Day
**The Texas Family Code does not provide alternatives for same-sex couples at this time.
|
|
|
Mother’s Day |
For Mother: 6:00pm Friday to 6:00pm on Mother’s Day
**The Texas Family Code does not provide alternatives for same-sex couples at this time.
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Parents are welcome to add to this list any additional holidays they observe. Additions and modifications to a standard custody arrangement and to parenting time should be discussed with legal representation to ensure mutual compliance.
If the Texas SPO is not right for a family, unmarried parents may agree to a custom possession order. They can ask the court to order a custom possession order and present a working alternative after showing the court that the SPO is not in the best interest of the child. Parties are free to get as creative as they want and make up something entirely new that works for them. It is important to keep in mind, though, that the custom possession order should be thoughtful and detailed enough to work with the parties’ everyday lives in a practical way, considering the parents’ work and travel schedules, the child’s schooling, and everyone’s activities. A parenting time specialist and family lawyer can help make sure that custom orders comply with Texas child visitation regulations. Custom arrangements must stay within child custody law and mitigate visitation issues.
The most common custom order is a 50/50 possession order. Simply put, this means each parent has possession of the child 50% of the time. This can look a few different ways, and the right fit for a family must consider numerous factors when deciding the best schedule. To be most successful, the parents should live close enough to each other for minimal to no obstacles to drop off and pick the child up from school and extracurricular activities, and, of course, time with friends. Here are two of the most often used models for a 50/50 possession order concerning school-age children:
As you may recall, the beginning of this article said that the Texas SPO applies to children 3 years old and older. Children under 3 years of age are too young to attend formal, compulsory school and need more supervised care than older children. As such, the court will render a custom possession order that is appropriate for the circumstances as presented, absent an agreement between the parents. Tex. Fam. Code §153.254(a). The court must consider the following factors when determining the proper custom possession order for a child younger than 3:
Clearly, as indicated by the last item, this list is not exhaustive. Any matters that are relevant to the child’s well-being may be considered by family courts when determining a custom possession order for children younger than 3 years old.
This article is aimed at giving you an overview of the visitation options available under Texas law, but please understand that this overview of child visitation in Texas provides only a few examples of what is possible. If you are facing a divorce or are already involved in an active suit that involves children, call our family lawyers at Ball Morse Lowe, PLLC, today to speak with an experienced child custody attorney who can help guide you through the parenting plan and child custody processes, as well as answer any questions about child custody you may have.
The information and material in this article is for informational purposes only and is not intended as a substitute for legal advice.