In a Texas divorce with kids with joint custody or sole custody the family court must order a possession schedule for how the parents share time with the children. The judge can sign a divorce decree or child custody order with virtually any schedule as long as the schedule is in the best interests of the children or the parents agreed to a schedule in a mediated settlement agreement. To avoid every divorce or child custody case from becoming an expensive battle over possession schedules the Legislature wrote a standard possession order into the Texas Family Code. The standard possession order (SPO) establishes a fairly simple schedule judges can use as a default schedule to avoid this problem. The SPO is not without its own problems and it is not an ideal fit for all families.
Your family law attorney can help you evaluate whether the standard possession order is right in your case and if not consider what might be a better fit and how to approach that result with the court and other parent. Fighting over possession schedules can be difficult, expensive and not all judges will even consider including other schedules in their orders. An experienced divorce lawyer will add value to your case by knowing the reasonable options in your case and how to approach them.
What is the standard possession order in Texas for child custody?
The standard possession order for child custody in Texas appears in Chapter 153 of the Texas Family Code as a basic possession order judges can rely upon as a default schedule in a divorce with children or child custody case. The standard possession order is a familiar schedule to many people because judges commonly use it. In families where one parent has alternating weekends and Thursday nights with the kids this is most likely the SPO. This schedule relies upon the classic structure of one breadwinner and one caretaker of the nuclear family. The standard standard possession order assumes the parents continue to live reasonably close so shuttling the children between two parents is not overly burdensome to the children. There are different SPOs for parents who live farther apart which are discussed in the next section. The SPO can also become an expanded SPO at the election of the parties which balances time a little more between the parents.
The standard standard possession order under the Texas Family Code
Section 153.3101 of the Texas Family Code begins the standard possession order which divides possession time unequally between the parents. The “managing conservator parent” has the majority of possession time while the “possessory conservator parent” has more limited time. Under the standard SPO the custodial parent possesses the children at all times except when the order specifies time for the noncustodial parent. The noncustodial parent’s possession times include:
- 1st, 3rd and 5th weekends of each month starting at 6pm on Friday ending at 6pm on the following Sunday;
- If during the school year the following Monday is not a school day then drop off time extends to 6pm on Monday;
- If during the school year the Friday starting the weekend is not a school day the pickup time begins at 6pm on the preceding Thursday;
- During the school year every Thursday night from 6pm to 8pm;
- On the child’s birthday 6pm to 8pm;
- In even-numbered years possession for spring break from 6pm on the last day of school before break to 6pm the last day of break;
- If timely elected, thirty days during the summer beginning and ending at 6pm for the elected days that can be exercised in one or two periods of at least seven days;
- If not timely elected then July 1-July 30 beginning and ending at 6pm;
- But the managing conservator parent may timely elect to take back one weekend starting and ending at 6pm during the possessory conservator’s summer possession time;
- In odd-numbered years Thanksgiving break beginning at 6pm the last day of school before break until 6pm the last day of break;
- Christmas time in even-numbered years beginning at 6pm the last day of school before break and ending at noon on December 28;
- Christmas time in odd-numbered years beginning at noon on December 28 and ending at 6pm on the last day of break;
- For Father’s Day or Mother’s Day as appropriate time beginning at 6pm the preceding Friday and ending at 6pm on Mother’s Day or Father’s Day.
Note that beginning in 2021 the Legislature made an important change to the standard possession order for parents residing fifty or fewer miles apart. If that is the case then the standard possession order changes to the modified SPO below. The judge must begin with the presumption in these cases that the modified SPO below is in the best interests of the children. The court can go back to the standard SPO if proven to be in the best interests of the children. If the parents reside more than fifty miles apart but less than 100 then the standard SPO applies. If the parents live more than 100 miles apart then a separate schedule discussed below applies.
The modified or expanded standard possession order under the Texas Family Code
Within the Texas Family Code the parents can elect a standard modification of the standard possession order. Yes–that is confusing. This standard expansion is often known as the modified SPO, expanded SPO or extended SPO. The extended times are so frequently used that they became a standard expansion pack for the SPO. For many families the 6pm drop off times can be interruptive for the kids and difficult for parents to shuttle around in rush hour traffic. The modified SPO gives the possessory conservator more time with the kids and avoids the rush hour pickup and drop offs.
Beginning in 2021 if the parents live fifty of fewer miles apart the standard possession order is automatically changed to this extended SPO as the SPO presumed best for the children. Otherwise, parents must elect the modified SPO and the judge must include it in the divorce decree or custody order for it to become the ordered time periods. Parents can voluntarily elect to follow this alternate schedule for as long as they continue to agree to it. If it is part of the order then it is an enforceable schedule.
The modified standard possession order changes pickup and drop off times to include:
- Normal weekend periods begin with school dismissal on Friday and end on Monday morning when school begins;
- If a weekend follows a holiday or teacher in-service day then possession extends to 8am on Tuesday;
- If a weekend begins with a holiday or teacher in-service day then possession begins with school dismissal on Thursday;
- Thursday periods begin when school dismisses Thursday until Friday morning when school begins;
- Spring vacation periods begin when school dismisses the day before break begins and ends when school resumes after break;
- Christmas and Thanksgiving break periods begin when school dismisses for break;
- Father’s Day only changes to extend to 8am the Monday following Father’s Day;
- Mother’s Day begins when school dismisses for the weekend and ends when school begins after the weekend.
For the most part this schedule changes pickup and drop off times to align with the school schedule so the possessory conservator picks up from school and takes the child back to school in the morning.
Standard possession order for parents who live more than 100 miles apart
Obviously the more distance between parents the harder it is on everybody to shuttle kids back and forth so the Texas Family Code attempts to reduce that burden in a SPO for parents who live more than 100 miles apart. In these situations it is often better for the parents to agree to a non-SPO schedule that works under the circumstances especially if the parents live in different states or opposite ends of Texas. Under the 100 mile SPO the possessory conservator is entitled to:
- Weekend possession periods of either the normal 1st, 3rd and 5th weekends under the SPO or one weekend per month beginning and ending at 6pm with notice of the election at least fourteen days prior;
- Every spring break beginning and ending at 6pm at the beginning and end of break;
- The same Christmas, Thanksgiving, birthday and Mother’s/Father’s Day periods in the SPO;
- With timely notice, summer break of 42 days in one or two periods of no less than seven days beginning and ending at 6pm;
- Without timely notice, summer break beginning at 6pm on June 15 and ending on July 27 at 6pm;
- The managing conservator can elect to take back one weekend beginning and ending at 6pm during summer break periods;
- The managing conservator, with timely notice, can block off 21 days at the start and 7 days at the end of summer vacation when the possessory conservator cannot elect summer break possession unless it interferes with Father’s Day.
This schedule eliminates Thursday possession and in exchange gives the possessory conservator all spring breaks. It also extends summer from 30 to 42 days for the same reason. This schedule requires the judge to elect in the order to maintain alternating weekends or reduce the weekend possession periods down to one weekend each month.
Why does the standard possession order exist in the Texas Family Code?
The short answer is that the Texas Legislature decided to offer a statutory framework for judges to rely upon to order a possession schedule in a divorce decree or custody order. Across the state divorces with children and child custody cases are heard both by judges with family law experience and judges with very little family law experience. Giving those judges a default option to rely upon in the Texas Family Code helps judges move cases along and creates more predictability in the process.
Without a default statutory option judges, parents and attorneys must rely upon themselves to come up with solutions. Judges can pick what they think is right and create a patchwork of default orders across the state. Parents and their attorneys may have to spend a small fortune to bring experts to court to testify to different schedules and take more custody and divorce cases to trial. Afterwards everybody involved with the kids would have to figure out how all these different schedules work. This would likely drive more frustration, cost and time for families.
Ok but why this particular possession schedule?
- It follows traditional parental roles; and
- It accomplishes its goals reasonably well.
Divorces became more common in the 1970s and 1980s with the rise of no-fault divorce laws. At this time it was common for parents to follow the “traditional” or “nuclear” family arrangement. One parent acted as the breadwinner–usually dad. One parent acted as the caretaker–usually mom. Dad worked during the week while mom took care of the kids and the home. Dad would spend more time with the kids on the weekends and mom did more of the evening work of making sure the kids had dinner, did homework, etc. The standard possession order reflects this family structure.
At the time moms often won primary custody because they were the primary caretaker but that is less true today. More families have two earners with parents sharing childcare duties or mom is the higher earner while dad completes more childcare duties. So why does the standard possession order continue to reflect this increasingly outdated structure? Several reasons:
- It is difficult to completely rewrite parts of the Texas Family Code;
- Many families still have a primary child caretaker even if both parents work;
- Judges know the language and how courts interpret the SPO;
- Judges can encourage parents to agree to something different than what the order says;
- Changing the law would create more litigation which would be expensive for parents;
- The current schedule prioritizes stability for the children; and
- Often one parent has to adopt a primary caretaker role due to the jobs of both parents.
Not all states follow this possession schedule. Some states, like Colorado, heavily favor a 50/50 schedule. Other states encourage considering the facts of the case to decide on a schedule. Eventually Texas may depart from this standard possession order but probably not any time soon.
Do we have to follow the SPO in the divorce decree or custody order?
No, the parents can voluntarily agree to temporarily or permanently change to a different schedule. It is common in some parts of Texas for judges to enter the standard possession order in the divorce decree but encourage parents to do what works until it doesn’t. As a divorce attorney I have encouraged clients to do the same thing in many cases. The reason why this makes sense is it provides a fall back if the agreed alternative schedule doesn’t work. If circumstances change or the co-parenting relationship breaks down then the parents can always go back to the SPO. If all they have is a custom schedule in the order and cannot work out a different agreement then they will probably spend a lot of money on a modification to get a new possession schedule.
Problems with the fallback SPO approach
The drawback to using the SPO as a fallback is sometimes falling back creates more problems. Sometimes problems arise and a frustrated parent will threaten to go back to the SPO too easily and create more division. That is more common for the parent who gets more time under the standard possession order. Sometimes parents are better off having an agreement put to writing and given blessing by the judge. Plenty of clients have told me they feel that is important to keeping both parents committed and that is reasonable.
Another problem with the fallback approach is it only takes one parent to want to start following the SPO and create a lot of friction in the co-parenting relationship. The parent who wants to follow the standard possession order can file an enforcement petition with the court to order compliance with the SPO. The other parent might respond with a petition to modify the order. Judges generally will not punish either party for following a past agreement and encourage the parents to figure it out for themselves. This can kick off a long process of expensive legal battles.
Can I have a non-SPO schedule in my Texas divorce or custody case?
Virtually any possession schedule can be designed to fit the best interests of the children and the parents’ ability to follow the schedule. Whether the judge will include that schedule in the order depends on the judge and Texas court. In densely populated areas like Dallas, Fort Worth, Austin, San Antonio and Houston there are specific family courts. The judges in those district courts are experienced family law attorneys who understand the consequences of these orders and whether it makes sense to include them. In less populated areas your case may be in a general civil court. These judges may be less experienced with family law and rely more closely on the Texas Family Code to guide their orders. They may decline to deviate from the standard possession order.
Nevertheless, parents have options to follow an alternative schedule. Following a Supreme Court of Texas ruling a judge cannot overrule a mediated settlement agreement including an alternative possession schedule. If both parents want a divorce decree or custody order to include a different schedule then that is a legal path to that goal. If your judge is open to a different schedule then the parties can agree without mediation to include that schedule in the order. Of course, no matter what possession schedule appears in the order the parents can choose afterwards to follow their own agreed schedule.
What are common alternative possession schedules?
Although parents can come up with their own possession schedules for custody most schedules tend to rely on a small number of similar schedules. Child psychologists and other experts who testify about custody schedules in contested divorces often also testify in favor of a small number of basic schedules. Most non-SPO schedules seek to balance out time closer to a 50/50 custody schedule than the lopsided standard possession order.
One of the most common alternative possession schedules in Texas is simply modifying one of the SPO versions to better fit the family members’ schedules. These schedules often are more like the SPO than some of the other schedules we will discuss here. Reasons for these modified SPO schedules include:
- One or both parents work irregular schedules that need different pickup and drop off times;
- The child participates in school activities that parents do not want to interrupt;
- A parent has church or academic activities that would be interrupted by the SPO times;
- Parents want to divide summer break more evenly;
- Parents want to divide holidays more evenly;
- A child has special needs that requires a different weekly or daily schedule.
50/50 possession schedules
In addition to modifying the SPO common alternatives include balancing possession time more evenly. This can be a true 50/50 custody schedule or something closer like 60/40 or 70/30. 50/50 custody schedules are increasingly common (for good and bad reasons). 50/50 schedules vary considerably and should consider the effect on the children. A common 50/50 custody schedule is weekly rotation in which the kids alternate entire weeks with one parent and then the other. It can be tough for some children to be apart from one home and one parent for that long.
Other 50/50 variants include rotating three and four or five and two day blocks between the parents. For example, a 4-3-3-4 schedule follows one parent has four days, the other three days, the first parent three days, the other parent four days and then repeat. Similarly a 5-2-2-5 schedule follows the same rotation. These also appear as 2-2-5 or 3-3-4 rotations. Some parents opt for two, three, or four day even rotations.
A rare but interesting 50/50 style joint custody arrangement is the bird’s nest arrangement. In this arrangement the children consistently live in one house. The parents rotate living in that home with the kids and during their non-possession period live somewhere else. Each parent often has their own independent home which might be an apartment or a room in a family member’s home. This is great stability for the kids when it works but can quickly become unworkable if the parents do not have a healthy co-parenting relationship.
Concerns in creative possession schedules in a Texas divorce
The standard possession schedule does not fit every family. As discussed above, it primarily works with the traditional breadwinner/caretaker parenting relationship. In many families both parents work and share childcare duties therefore that schedule may be practical. The children may have interests or needs that make the schedule impractical as well.
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.
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 modifying the possession schedule. Before adopting any possession order the parents should really think through the arrangement and talk to a family law attorney.
How a divorce attorney can help reach the best possession order in a Texas divorce with children
Although the standard possession order is a default option in any divorce with children or child custody case the truth is there is no standard option that fits every family. What is right for your situation depends on a number of factors considering your children, your situation, the other parent’s situation, the conflict between the parents and the judge in your case. Ideally you want to establish a possession schedule and parental rights from the beginning that best serve your children and will result in long term healthy parenting and co-parenting relationships. Your custody or divorce attorney has experience dealing with similar cases and the courts in your area so they can help you explore these factors and consider both their short and long term goals.
Often parents want their custody case or divorce to end as quickly (and cheaply) as possible so they will give in to an easy answer rather than the best answer. Having worked as a divorce attorney on hundreds of divorces with children and custody cases I find these cases usually result in kicking the can down the road. Unproductive possession schedules often lead to years of frustration and may end up requiring one or more modification suits which can be far more expensive than the divorce or custody case. Hire an experienced custody or divorce lawyer to represent you and help you develop a workable solution for your future.