SPEAKER_01: 0:09

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, Cyprus, and Sugarland. And today I am joined by senior attorney at Hunt Law Firm, Margaret Tucker. Welcome back.

SPEAKER_00: 0:25

Thank you.

SPEAKER_01: 0:26

So, uh, Margaret, we've talked in the past about uh child custody. Uh today we're gonna 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 um, we're just gonna uh do a deep dive. So let's jump right in. Uh, the standard possession order is essentially the default order um that applies to every child custody order, and it lays out who's gonna have the kids and when. Tell me um a little bit about the differences, the different types of standard possession orders, depending on uh how far you live from the other parent.

SPEAKER_00: 1:16

Okay. Um 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 know, 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, you know, it's a predictable schedule for everyone. So um the standard possession order for under 50 is that um the non-primary gets the children every single Thursday, starting with school, starting when school lets out, um, and then they bring the child back to school on Friday, and then they get the child after school on Monday, uh, excuse me, Friday until Monday morning. And on the off weeks, the second and fourth week, they get the child um Thursday overnight.

SPEAKER_01: 2:21

And and what we're gonna do is um if you are listening to this um as a podcast, you can go to YouTube and you can watch this video, and we're gonna have on the screen a graphical representation that we've got on our website. If you go to family lawyerkatie.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 familylawyerkatie.com just to help you uh kind of keep up uh with what we're talking about verbally. And uh it's important because there are a lot of nuances in the standard possession order and uh it it takes a little bit of time to understand all of it. So um you uh were talking about uh zero fifty miles. Go ahead.

SPEAKER_00: 3:19

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 so, and then Thursday is overnight. So they pick, like I said, pick up from school on Thursday and return this the child to school on uh Friday morning. So that makes it an expanded, or you can also refer to it as a standard possession order with elections.

SPEAKER_01: 3:46

Okay.

SPEAKER_00: 3:47

So if it if they live within 50 miles of each other, the court is going to give this to them. Okay. Um, there has to be a reason not to do. 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.

SPEAKER_01: 4:08

And and it's called a rebuttable presumption, which means the court's gonna presume that it's in the child's best interest, but it can be rebutted with evidence showing maybe this isn't gonna work. And there are plenty of examples that we have in our practice where it doesn't work. So, say, for example, we've got a client that works offshore and they're two weeks on and then two weeks are uh in the Gulf, that's not gonna work for them. They need to have some sort of custom custom possession schedule, or you know, there's a lot of times there's work issues or there's reasons that they can't do, say, uh a Thursday night, something like that. The the key to remember is that a standard possession order may be the default, but it doesn't have to be the order. Okay, and you can agree to anything else. If you and the other co-parent agree, you can agree to whatever you want, um, 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, um, the court will approve that. So what else other than that um first, third, and fifth weekends does this uh expanded standard possession order have?

SPEAKER_00: 5:21

Um they has a holidays. So um the non-primary parent gets 30 days. Um 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. So, you know, sometimes parents just do that because it's easier. Um, but you get to choose as the non-primary parent.

SPEAKER_01: 5:50

As long as you uh elect that time by April 1st, correct. You can select whatever you want. Otherwise, it just defaults to July 1st to July 30th.

SPEAKER_00: 6:01

Correct.

SPEAKER_01: 6:01

Okay.

SPEAKER_00: 6:02

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 um non-primary has for an SPO week.

SPEAKER_01: 6:14

So they can have an extended vacation.

SPEAKER_00: 6:16

That's how they get their summer too.

SPEAKER_01: 6:18

And they would need to make their election by April 15th. Correct. And um so that's the summer. What about holidays or other special days?

SPEAKER_00: 6:28

So they rotate. So depending on the year, whether it's odd or even years, you know, you uh non-primary is going to be assigned odd years or even years, and the the primary is gonna be assigned odd or even years. Um, they're going to switch off Thanksgiving. Um, 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. So 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 um other parent is going to be the beginning of Christmas. So again, the day they get out for Christmas, which a lot of times is a Friday, um, until the 28th of December.

SPEAKER_01: 7:09

So they have actual Christmas.

SPEAKER_00: 7:11

They have the full of Christmas. And then um it switches on uh noon on the 28th. And then the other parent who had Thanksgiving gets the second half of Christmas until um the Sunday before school starts again. So um, and then spring break, they switch depending on the year. So um, those are the main holidays that we consider. It's also Mother's Day and Father's Day.

SPEAKER_01: 7:34

And and when you say it switches depending on the year for spring break, that's odd even as well.

SPEAKER_00: 7:38

Again, yes.

SPEAKER_01: 7:39

And then uh, you know, sometimes I'll have folks that'll add, it'll be kind of an SBO plus where they'll add a few things in. If they're um, you know, uh Easter is particularly important to them, then maybe they'll add some language in about that. And then the standard possession order does uh guarantee the other parent at least two hours on the child's birthday if they don't have them uh during that time. So uh 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 100 miles plus, the presumption is just a regular standard possession order. So tell us a little bit about the difference between an expanded standard possession order with elections and one without elections.

SPEAKER_00: 8:44

Okay. It's kind of we kind of consider it like we'll call it the basic SPO. Um, 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, you the non-primary parent gets the child from six to eight. So it's kind of maybe a dinner time on uh Thursday nights. And then on Friday, they um get the child at 6 p.m. And then they get the child till um Sunday night at 6 p.m. So it's it's a more limited, but it also kind of works with people's work schedules if you're out of town, those kind of things. So um that's why it is um part of the over 100 miles uh language, because you know, here we are in Houston, and maybe a non-primary parent lives in Austin. Well, they can come in, you know, first, third, and fifth weekend. So they can still do the whole basic standard possession order. But maybe the person we're 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 um a month instead. And when you're over 100 miles, you get um instead of 30 days during the summer, you get 42 days during the summer.

SPEAKER_01: 10:00

And it's a lot of time. And generally, a standard possession order, you know, I've heard different numbers, and it really depends on the year, but a basic standard possession order is probably gonna get you around 42%.

SPEAKER_00: 10:14

So a 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 gonna get, because they get third first, third, and fifth weekends. And so um, you know, it depends if there are more fifth weekends in that year, um, how the holidays, how the weekends fall, all of those kind of make the the percentages switch. But yes, I 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.

SPEAKER_01: 10:52

And and it's it's different time. And you know, the primary custodial parent is going to have a lot of the, you know, we're doing, we're coming to school, we're coming home, we're doing homework, we're eating dinner, we're going to bed. Um, and 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, third, and fifth weekends, but they get a big bulk of their time in the summer. Um, and uh they um, you know, 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.

SPEAKER_00: 11:35

Correct.

SPEAKER_01: 11:35

You know, I think one of the really cool things about the standard possession order uh 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 the standard possession order. And uh 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 uh, 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. Um, that is ideal, but that's not everybody. And in the event that you can't, 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 is going to look like. So uh those are your standard possession order uh uh different schedules depending on where you live, depending on your work schedule. You could do uh standard possession order with elections, without elections. Um what would you say um what is the frequency in your practice that you're seeing standard possession orders versus a more customized schedule?

SPEAKER_00: 13:13

I would say I encourage to do standard possession orders more because it is what a court would do. Um it is 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 the schedule is. They they know exactly how to handle it, that kind of thing. But it's okay to stray from that if as long as you have agreements of the party. I would say the most that I have seen um other than a standard possession order is a 50-50 split. Um, and that's probably the next step of what people agree to do is a 50-50.

SPEAKER_01: 13:52

So let's dive into these custom schedules, which again, like you said, um 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 um, you know, we've taught we've had cases where it has been inappropriate or unworkable. What are some of those instances where you've seen uh the party say this isn't gonna work or the court say that? Like, what does the schedule usually look like where we've had to do something different?

SPEAKER_00: 14:33

Okay. Well, being in Houston, we're a big oil area. Yeah, I've seen a lot of um different types 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. So, and you know, even if you were able to designate a competent adult to take your place, you're missing time with a child. And so, you know, you want your time with your own child. So I've seen courts do, you know, 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 um oil rigs or um firefighters, a lot of times they have their, they work 24 hours and then they they're off, I believe 48 hours. Or um, you know, sometimes doctors are on call. They uh I've seen a lot of different ones. Um, the 50-50, you know, some parents really, you know, it it kind of rakes their hearts not to see their child once a week at least. So they do uh a 223 type schedule, you know, where they rotate like that.

SPEAKER_01: 15:41

Yeah, so we see that a lot where uh 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 uh and 50% with the other parent in terms of possession time. And a lot of people will come to us and and they equate 50-50 with joint custody. Uh, 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 uh just because you're joint managing conservators, that doesn't mean you're gonna 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. Um, the first common way that we see it is week on, week off. What does that look like?

SPEAKER_00: 16:32

I will say the most common I see is like a Sunday night switch. So one parent takes the child starting um Sunday, maybe 6 p.m., and they have them the entire week until the next Sunday at 6 p.m. 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.

SPEAKER_01: 16:56

Okay. And um the the next way that you can do a 50-50 that we see commonly is what's called a 223, or sometimes it'll be a 225, and there's different names for it. But essentially what that is, is uh, you know, Monday and Tuesday, parent number one will have the child. Uh 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 um some of the pros of a 50-50 or a 2-2-3 schedule.

SPEAKER_00: 17:36

I think parents um who choose a two, two, three get, you know, they like the fact that they get to see their child every week and spend days with their child every week. So um for that purpose, I think they really like two, two, threes. Um the week on, week off, people like the fact that they have, you know, 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 know, you see your child for seven straight days without kind of anybody being in the middle, that kind of thing. So I think they find those are positives for the week on, week off, and two, two, threes.

SPEAKER_01: 18:17

And some of the feedback that I've gotten from judges over the years, and I 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 uh uh 50-50 schedules. But the main feedback that I've gotten from them has been uh that the child doesn't feel like they have like a home base. They don't have a home, they're just constantly being shuttled back and forth. And um, 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, you know, like 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 um, you want to have more regular, frequent contact with the other parent. Um, and then the other feedback with something like a two, two, three is that the 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 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, um, the courts, if they can, will uh overrule it. Um, now there's procedures that we use, like an immediated settlement agreement to kind of lock the parties in, the court can't overrule it. But um, we've certainly had situations where if you don't have a mediated 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 they'll really push back on it.

SPEAKER_00: 20:11

I 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. Yeah. 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, take some places.

SPEAKER_01: 20:28

And it doesn't mean they're the better parent. It just means that they handle some of the logistics. Um, and it, you know, it is what it is. And sometimes there is a, you know, a co-parenting relationship where there is uh an equal distribution of handling those things. Um, but most of the time, like you said, there is one parent that is handling um setting up doctor's appointments, taking the kid to doctor's appointments and uh signing the report card or, you know, I guess it's outdated now. You know, the report card, it's all online, but you know, those types of responsibilities.

SPEAKER_00: 21:04

Um and a lot of times with a 50-50, then the discussion starts that no child support will be given. So, and that kind of opens up a whole new window of, you know, are both parents able to support the child during their time and and that kind of thing. So that's when we start opening up can of worms for other things. So um, you know, once, you know, once somebody agrees to a 50-50, other things come with it too. So, you know, there's a lot to consider. And that's those are some of the reasons I don't think uh courts have given into those yet. And if if people are doing it, they may continue it, but I haven't really seen a lot of courts order them.

SPEAKER_01: 21:44

Yeah, no, I agree. And so we 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 gonna 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's 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. So tell me what you've seen. Tell tell me a little bit about an under-three order and what you've seen in your practice.

SPEAKER_00: 22:20

Okay. An under three order is um, the court's gonna look at a whole bunch of factors. You know, they're gonna look at things like, you know, what happened before you came to court, you know, what, how did y'all, you know, take care of the child before when maybe you were married or together as a couple, um, who would primarily take care of the child? Did they, you know, were there overnights with that child? Um, who's set up to have an overnight? Because we are talking about some children that, you know, are are itty bitty babies? I mean, you're talking about a three-month-old baby. Right. Is both house both houses able to take a three-month-old baby? Are there cribs? You know, are there is there formula set up? Are are there car seats in the car?

SPEAKER_01: 23:03

You know, that is the mom still breastfeeding. Yes. I mean, you can't have a a three-day period of possession for dad if mom is still breastfeeding, unless you make provisions for that and the mom agrees to, you know, uh 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 into consideration. And, you know, there's a difference between a three-week-old and a three-month-old and a three-year-old. And uh, if you know, if anybody's watching or listening and you're interested in the full list of criteria, there's you know, 13 different criteria that the court uses in determining what a good under three schedule would be. You could just Google uh Texas Family Code section 153.254, and you have all of the list of what the court's gonna 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 gonna be caregiving provided to the child before and during the current suit, um, the the continuity of the child's routine, all these things are gonna be considered. What have you seen generally? Say you've got, 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 an under three that's, you know, about six weeks old, say?

SPEAKER_00: 24:30

I don't see a lot of courts award a specific schedule. I I see most of the courts award the standard possession order. I I mean, I think it's more common for that. Um, 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, um, you know, whether they're two weeks old or whether they're three, you know, almost three years old, I've 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, you know, give love and time to this child, then I I feel like they want to give as much time as possible to that non-primary parent. Um, I have seen some three, you know, under three awarded, but not very common. Um, and what it usually entails is like maybe Saturdays instead of doing like a SPO weekend that has overnights, they usually do like Saturday from 10 to 5, and they don't do an overnight as much. So it's limiting the overnights, is mainly what it is.

SPEAKER_01: 25:33

And I've also had some courts that have granted um like like short bursts of like very frequent contact for the non-custodial parent. And 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 the mom, because you know, there's uh if they're still breastfeeding, then that's a physical consideration that needs to be made. Um, but what it would look like is um, you know, maybe every evening uh from 5 to 7 p.m., the dad's going to be able to see that child. Um, we don't get a ton of cases where you've got like a six-week old uh involved. But in a case where you have a really young child like that, um, you know, my understanding of the state of the art, uh, you know, 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 I've seen courts do that, especially for that very critical time in the early part of the child's life.

SPEAKER_00: 27:01

Definitely.

SPEAKER_01: 27:03

Um 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?

SPEAKER_00: 27:15

No, I mean, I would just say overall, you know, I have I have clients come in or, you know, um, they're kind coming in for a consult and, you know, they'll say, I don't think he can handle, you know, having the child. I don't, you know, I don't want him to see the child, or, you know, I want to limit his time with the child. I think the part we need to realize is is that, you know, these parents respect each other and they need to respect each other as parents of the child. And, you know, 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, you know, if there are specific circumstances that, you know, you may need it to change days or something like that. But it makes it more reasonable when people come in and know that, you know, 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 they're going to want, you know, it it 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, you know, come up with a schedule that works for everybody.

SPEAKER_01: 28:37

Yeah. And and I think there's a recognition too in most of the courts. Um, you know, they they need to protect the best interest of the child, including emotional health and the physical well-being, but that um sometimes the status quo, when it changes, the the other parent maybe hadn't stepped up the way the the co-parent wanted them to in the past, but they need to be given some opportunity to prove themselves. And so um, 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 are a married couple or you're a couple that was together and that was your agreement, um, 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. And so um, you know, in an ideal world, both parents uh, you know, can co co parent together, reach decisions on things, kind of put aside their personal relationship or animosity or you know, whatever they went through and put their child first. And um, you know, in the event that they can't uh or won't uh 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 uh 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 uh 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 bet what's in your child's best interest way better than uh a judge or a jury ever will be able to, no matter how long the trial is and how good um, you know, how good they are. Well, Margaret, thank you so much for coming back uh to the podcast. And uh if you're listening and if you're watching this, um again, go to familylawyerkatie.com, go to our resources tab. You can see uh this year the standard order, uh 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, uh you'll see a number of articles about top custody, including the standard possession order schedule, uh 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 uh looking to do a consult with me or with Margaret, uh you can visit our website. You can call us at 832-315-5494. We're happy to have a consultation, 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, uh Margaret, thank you for joining us and uh come back and see us next time.