A few months ago I wrote a post about problems with 50/50 custody arrangements. Generally, the problems I discussed are relevant to any kind of custom or creative custody arrangement deviating from the standard possession order or extended standard possession order schedule found in the Texas Family Code. 50/50 custody arrangements are not the only type of non-standard custody arrangements in a Texas divorce. You can create almost any kind of custody arrangement that you like. Some custody arrangements are extremely unusual but work for the family. Your unique schedule may do as little as tweak the times in the standard possession order to work around jobs or even the Cowboys game schedule to a 50/50 schedule to something very complex with all sorts of optional rights and restrictions.
The Texas Family Code and creative possession schedules in a Texas divorce
Under the Texas Family Code, any possession schedule contained in a court order defining the rights and responsibilities of the parents must be in the best interests of the children. It is usually up to the judge to find that the arrangement is in the best interests of the children. Some judges will not deviate from the standard possession order or extended possession order. Other judges will approve almost anything well-explained in the order and agreed to by the parents.
The Texas Family Code also allows parties to agree to custody arrangements through mediation into a mediated settlement agreement. The judge cannot decide the mediated settlement agreement is not in the children’s best interests. That can be an effective way of ensuring the agreement of the parents becomes the order of the court. Today’s post will discuss some of these alternative custody situations and the pitfalls that go along with creating them.
Reasons why an alternative custody arrangement might be best in Texas
The standard possession order (let’s abbreviate it as SPO) and the extended SPO contained in the Texas Family Code is a default option created by the Texas legislature to govern custody rights when the parents cannot or will not agree to their own arrangement. It relies upon the stereotype that one parent is the nurturer and the other parent is the breadwinner. So the nurturer gets the majority of time with the children so the children will receive care from the parent most involved in their lives. The other parent, who is often responsible for paying child support, is assumed to work a Monday-Friday, 8-5 job who is able to spend time with the children on weekends and sometimes during the week. It reflects the 1950s nuclear family where Dad works and Mom raises the kids.
Modern families do not always fit this description and that can create problems trying to follow a possession schedule that has never reflected the family structure. In many cases it creates friction among the parents or with the kids. As kids grow into their teen years they usually want some independence to hang out with friends on the weekend. Being displaced to a new home, perhaps far from their friends, can create friction between the kids and the parent with weekend possession. It can also create conflict between the parents where the parent with the majority of possession has all the responsibility with the kids (getting them to school, doctor appointments, disciplining and cleaning up after the kids) while the other parent gets to be the fun parent who takes them out to eat and other fun activities.
Standard possession orders in Texas divorces
The SPO/Extended SPO typically includes language encouraging the parents to work out their own schedule and fall back on the SPO when the informal arrangement falls apart but this does not always work as planned. After a divorce the parents may not be in the best place to come to any kind of agreement that doesn’t involve lawyers. Even where an informal agreement is reached, it does not take much for conflict about other issues (such as child support) to break down that informal agreement. Worst of all is when one or both parents yo-yos between following the informal agreement when the parent is getting his or her way but demanding compliance with the SPO when he or she isn’t getting what the parent wants. The children end up trapped in these conflict situations.
A schedule written in clear terms with a judge’s signature allows one voice to dictate the terms of the agreement and establishes predictability in the arrangement which in turn helps smooth over conflict. Good reasons and good situations exist for the SPO or extended SPO where the parents should modify the schedule with the SPO/extended SPO as a fallback; but there are cases where the SPO is so unworkable or against the agreement of the parties that this fallback SPO creates more problems than it solves and drafting a custom custody arrangement is better.
Reasons why alternative possessions schedules can be a good idea in a Texas divorce
Many of the reasons why an alternate custody arrangement might be a better idea revolve around issues with the parents’ work schedules, type of work performed by the parents, the distance between parents, the particular needs of the children, the relationship between the parents and their involvement with the children. The most obvious here is where there is significant distance between the parents. It’s obvious that neither parent will have the money to fly their children across state lines every other weekend. Although there provisions in the SPO for long distance parenting, there is little to sort out how to transport the kids and who pays.
Additionally, parents who have variable work schedules or require on-call time may result in parents lacking the ability to keep the children for days at a time or create situations where the parents need to have a clear procedure for what happens if a parent must go into work on an emergency. If a parent works weekends then it may be difficult to spend much time with the children. Extra-curricular activities often also interfere in the SPO schedule as many activities take place on the weekend or evenings.
Moreover, the parents may simply have greater interests in sharing time and responsibility for the upbringing of their children. As you can see, there are many valid reasons for wanting a customized arrangement. If you are reading this blog post then you probably already have some reasons for investigating this topic.
Common Pitfalls with Custom Custody Arrangements in Texas
However useful alternative custody arrangements may be, they are not without their own problems. I always make sure that clients understand the dangers associated with custom custody arrangements. There are some common pitfalls with these alternative custody arrangements.
The arrangement that works well today may not work particularly well tomorrow. Life happens and things change. One year your son is into baseball, the next football and then maybe both the year afterwards. Jobs change, schedules change, and unfortunately jobs go away. A custody arrangement tailored for the environment at the time of the divorce may be unhelpful when changes occur. The remedy for an unworkable situation is to modify the possession order in court. The more narrowly tailored the custody arrangement to a unique situation, the more likely it will become unworkable over time.
Additionally, the more likely a schedule is to change the more likely the custody arrangement will no longer makes sense. Extra-curricular activities are particularly problematic here. Kids tend to have evolving interests and each interest will have different scheduling issues. Locking yourself into your daughter’s ballet schedule today may not make sense in a decade when she’s playing volleyball.
Drafting divorce decrees with alternative possession schedules in Texas
Additionally, the more complex the arrangement, the more likely problems will arise in trying to follow the language. Some custody arrangements can be very complex that is difficult to convert to an order that will allow a future court proceeding to decode.
On the other hand, sparse drafting can have the same effect. When the custody arrangement is not well explained and provisions dealing with unusual situations are lacking, conflict can easily arise. This is a particular risk when parties attempt to draft a custom custody arrangement without divorce lawyers.
Changing relationships and alternative possessions schedules
Another common pitfall in alternative custody arrangements is the changing relationships between the parties. Most alternative custody schedules require a high degree of cooperation between the parents. That requires a healthy and positive relationship between the parents. That can change. When the parenting relationship sours, it can be very difficult to make your alternative custody arrangement work. The arrangement can also become less than ideal as the children grow and their relationship with the parents change. As children grow into teens they often want independence from parents. An involved schedule can lock the kids into spending additional time with the parents. That can be frustrating for everybody. Sometimes the children will take one parent’s side and that can also raise complications.
As you can see, these problems mostly revolve around changes in the environment. (You can certainly brainstorm an endless list of potential issues that can spoil a healthy custody arrangement.) Sometimes an arrangement should not and is not a long term solution. Sometimes a custody arrangement is crafted with the intent of changing the arrangement in the future. That is fine as long as a reasonable process exists to allow that transition to occur smoothly.