Do I have to have a standard possession order in my Texas divorce? Fort Worth divorce lawyer explains
In a Texas divorce with kids the divorce decree must contain a possession order for custody (conservatorship, visitation/access and possession) or the possession information must be included in a mediated settlement agreement incorporated into the divorce decree. The order must also include medical support for the children and may include additional child support. The typical possession order known as the “standard possession order” is the possession order in the Texas Family Code. In any divorce you should strongly consider consulting with a Fort Worth divorce lawyer about your rights and how to protect your relationship with your children.
The standard possession order is what most people think of with a divorce. The 1, 3, 5 weekend and Thursday evening plus a month of summer possession schedule. It is the “standard” because the Texas legislature decided it was a fair schedule parents could use in a default arrangement whether the possession order is coming from a divorce or a suit to establish parental rights and support obligations for children regardless of the marital status of the parents (known as a suit affecting the parent-child relationship or SAPCR). It can be a safe default scheme for parents. The order language comes right out of the Texas Family Code and judges are very familiar with it. However, just because it is the standard possession order does not mean you must include it in your divorce decree.
Alternative possession schedules in Dallas-Fort Worth, Texas divorces
Virtually any possession schedule can be designed to fit the best interests of the children and the parents’ ability to follow the schedule. Judges rarely reject a non-standard possession schedule because they want the parents to work out an arrangement that will benefit the children and create a working co-parenting relationship. The two most common reasons judges may reject your possession schedule are: (1) the schedule is not in the children’s best interests; or (2) the language of the possession order fails to clearly explain the schedule. Let me give an example of each. Sometimes parents will request a 5-5-2-2 schedule. In that schedule parents switch off five continuous days of possession then each gets two days of continuous possession. That gives each parent 50% possession. It’s a popular recommendation by some custody experts as a superior option to just alternating weeks.
The judge might like the idea of the parents sharing equal time but if the parents live an hour apart then that means a lot of drive time for the children, especially during the school year. The judge may not agree that so much travel time is in the best interests of the children. On the other hand, the judge might be fine with your 5-5-2-2 schedule (sometimes also referred to as 5-2-2-5 or 2-2-5-5) but the way you or your lawyer drafted it results in unclear language and the judge suspects potential future conflicts will arise and the proposed schedule language will not clearly resolve those conflicts. Clear and specific language in your possession order is extremely important. The less easily understood the language in your possession schedule, the more likely the parents are to have conflict down the road over the meaning and effect of the possession schedule.
Concerns in creative possession schedules in a Texas divorce
Parents have considerable flexibility in creating a possession schedule but the schedule needs to avoid the two issues just addressed. The schedule needs to be something clearly defined in the possession order. The schedule also needs to benefit the children although that can mean both how it affects the children as well as maintaining a healthy co-parenting relationship. Some common reasons for creating a non-standard possession schedule:
- Parents want to give each other more access to the children;
- The work schedule of one or both parents;
- A child’s extra-curricular activities;
- A child’s medical needs;
- School schedules;
- Vacation schedules;
- Religious practices;
- The lifestyle of one or both parents;
- Balancing the financial support of the children.
Schedules can range from a perfect 50/50 division of possession to one parent rarely seeing the child (such as a parent who is out of the country for most of the year due to work) and everything in between. In less healthy parenting situations one parent may be limited to supervised visitation or have no visitation at all.
Sometimes a non-standard possession schedule is a double-edged sword. On one hand it should fairly satisfy the needs and abilities of each parent based upon their schedules today. On the other hand, life changes occur and many people find themselves needing an alternative schedule. If both parents lack the flexibility to change their schedules then some problematic situations can arise. A lot of money and agony may go into modifyng the possession schedule. Before adopting any possession order the parents should really think through all of the facets of that arrangement.