What happens when 50/50 custody fails in Texas?

Cheap QDROMany parents in a divorce are able to work out a custody schedule that balances time between the parents more fairly than the standard possession order. These schedules are often a 50/50 schedule with equal time between the parents or something similar. These arrangements are great when they work. They require a high level of cooperation which makes it more likely that there is a healthy co-parenting relationship and the children have healthy relationships with both parents. That, unfortunately, is the double edged sword in 50/50 custody arrangements.

When the cooperation and healthy co-parenting relationship crumbles that 50/50 possession schedule stops working. The children can end up back in the middle of a difficult relationship between their parents. What happens next is one of three things. One, the parents can figure out between themselves how to work out the problems and get back on track. Two, the divorce decree or other custody order may provide an alternative solution. Three, if all else fails the parents may go back to court and ask the court to modify the custody arrangement to adopt a different possession schedule better suited for the children and parents.

In either the second or third scenario the parents may need to hire (or return to) a divorce attorney for help maneuvering mediation or court proceedings to resolve the conflict. Today’s post will discuss these scenarios in more detail and explore some of the probable results of each.

The Fragile Nature of 50/50 Custody and Other Unique Custody Arrangements in a Texas divorce

These 50/50 custody arrangements fall apart down the road from the divorce for a variety of reasons. Sometimes the parties are so caught up in the emotional aspects of wanting to protect their children and their relationship with the children that it can be difficult to have an objective understanding of what has changed. In some cases one parent has a change of heart and just wants to be greedy about the children without regard for anybody else. Many parents in this situation feel like this is the case although it is rarely true.

More often it is the case that a major life change has occurred for one or both parents that has led to problems. These can be changes in job schedules or job opportunities, new significant others, a desire to move to a new region or changes in the children’s relationship with each parent as they age. Sometimes 50/50 custody arrangements are so fragile that even the smallest lifestyle change can render them unworkable. A couple hours of mandatory overtime can be enough to do it. Regardless of the reason, there must be a new workable arrangement for the sake of the children.

Working It Out between the Divorced Parents

If the parents still have a mutual desire to work together then they might be able to put together a new voluntary scheme. This path is effective only if there is still that mutual desire to work together. Otherwise any agreement is likely imbalanced in favor of whichever parent cares least about ending the conflict. That’s because whichever parent wants to cooperate is likely to give in to the other parent to end the conflict.

Unfortunately, once the co-parenting relationship breaks down it is rare for the parents to work something out between themselves. Often the parents have opposing interests that makes it difficult to find an agreement that makes both people happy. This usually means the parties have to take a different path for conflict resolution.

Following the Process in the Texas Divorce Decree

Sometimes a divorce decree requires the parties to take certain actions before they can go to court to modify the divorce decree. The most common form is mandatory mediation. Here the parents must attempt at least one session of mediation to try to resolve the conflict before the parties can file for modification. Other less common approaches are arbitration, the right to revoke an alternative possession schedule and mandatory counseling. In most cases the parties must make a good faith effort to follow the divorce decree before a judge will allow a modification suit to proceed.

These alternative conflict resolution mechanisms are often a mixed-bag. Typically at this early stage at least one of the parties is not emotionally prepared to reach a solution. Going to mediation can be a waste of time and money. It may not be until the parties have spent money and aggravated each other that an agreement can be reached. Sometimes the involvement of a professional to break the emotional logjam and broker an agreement can be exactly what the parents need.

Going to family court in Texas

When all else fails and the parents cannot continue down the present path, they must go to court and ask the judge to modify the custody arrangement. Modifying the custody order through litigation is usually the most expensive and most aggravating option for the parents. It is the one most likely to result in a definitive change to the custody arrangement. Through the litigation process the court may order the parties to attempt mediation. (This is true not only in family law litigation but in most civil litigation.) If no resolution results then the parties must take the modification to trial and let a judge (or jury) decide the family structure.

Parents should think hard about their desire to leave these issues to a complete stranger. If the court decides how to modify the custody order then the parents should prepare for a possible unpleasant result. Many judges are uncomfortable crafting a custom custody arrangement.

As a result the judge may rely upon the standard possession order described in the Texas Family Code. Many Texas judges do this. That means one parent will get a lot of time with the kids. The other parent will see the kids on a few weekends and Thursday nights. That can be quite a shock to everybody involved. The judge may accept one parent’s requested change. Then a new co-parenting relationship arises on the basis of one parent winning and the other losing. That can breed hostility for a long time. These results are less than ideal for most parents.

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