In Texas, child custody refers to legal decision-making and rights and duties of the child while possession access refers to physical time spent with the child, or what most people call visitation. We refer to this as possession and access. It’s a little awkward sounding, but that is the term that you will hear throughout the divorce process. What your possession period is or when you have possession of the child. That means when you’re spending time with your child.
The public policy of the State of Texas, is that parents who are able will have frequent and continuing contact with their children. The State’s goal is to maximize each parent’s time spent with the child. We have what is known as the standard possession schedule. The statutes, the laws, also state that it’s presumed that that standard possession schedule is in the best interests of the child. This standard possession schedule also presumes that the judge will appoint one of the parents as the primary parent and the other parent as the possessory parent within a joint managing conservatorship.
It’s presumed that a joint managing conservatorship is in the best interests of the child. I know it sounds like when you say joint managing conservatorship that it means a 50-50 timeshare of the child. That’s not what this means. A joint managing conservatorship means shared rights and duties and basically shared control over what happens with the child. These are things like educational decisions, and when I say educational decisions, I don’t mean where will the child attend school. If the child is in public school, unless your decree specifically says that the child is restricted to a certain tract or a certain school, then they will go to the public school where that primary parent resides.
Primary and Possessory Parent
So what is primary and what is possessory? Primary is the parent who is with the child about 60% of the time. Possessory is the parent who is with the child 40% of the time, if we are following a standard possession schedule.
Standard Possession Schedule
So a standard possession schedule is one where the possessory parent spends time with the child on the first, third and fifth weekends of each month, on alternating holidays, and if they’re within 100 miles of each other, then 30 days in the summer. If the possessory conservator lives more than 100 miles away, then the standard possession schedule varies such that the possessory parent gets every spring break and 42 days in the summer.
I know that this can seem kind of complicated but there are software programs that can map it out and can show you how it works.
A lot of people spend timing arguing over the fifth weekend. Really, in a typical year, there are about two to four weekends per year that are not trumped by a holiday period. So if the fifth weekend happens to fall during the winter break from school, then the possessory conservator doesn’t exercise their fifth weekend. They’re getting either the first or second half of the winter break as it falls in their schedule.
Expanded Standard Possession Schedule
There’s also something in Texas called the expanded standard possession schedule. The possessory conservator of the child also has possession overnights every Thursday night instead of only having the child for dinner or from afterschool until bedtime on Thursday nights.
On both the expanded and the standard possession schedule, the Thursday visits are only during the school year. On the expanded schedule, the possessory parent would also have possessions on their weekends, which are the first, third and fifth weekends basically from Thursday until school resumes on Monday. If you count every minute of it, the expanded standard schedule works out to about a 49% / 51% split of the time.
Some of the other schedules we use are referred to as 50-50 possession schedules.
One of those is called the wrap, or the 5 2 2 5 schedule. The way that works is it would be that one parent has possession of the child, let’s call it Monday, Tuesday of every week. The other parent has Wednesday, Thursday of every week, and then they alternate the weekends. So they basically get their five days on. It’s 5 2 2 and then 5 so they don’t go 5 full days without seeing their child.
Week On Week Off Schedule
Another 50-50 possession schedule is the week on, week off and there’s a lot of information out there, about whether that’s good for children of certain ages. I think the general consensus of what I’ve heard is that it’s better for children who are older. Teens or tweens adapt better to a week on, week off schedule than say, a four or five or six or even eight year old. The younger children, elementary age children, tend to do better with a more stable home base during the school week and a lot of predictability and not being moved around a lot during the school days. I think if I had a child who was in those younger years and I really really wanted to do a week on, week off, I would probably lean towards the 5 2 2 5, but it would probably be smart to speak to a child specialist about your particular situation and figure out what would work best for your child in those formative, developmental years.
So another common possession schedule that people seem to like is the alternating weekend schedule. And so every other weekend, each parent has the children and normally that would be where the possessory parent has the children every other weekend and then probably a midweek visit somewhere in there as well.
Another thing that I probably didn’t mention is if you are going to try to elect the expanded standard, or either one of the week on, week off or the 5 2 2 5 or the wrap, it’s really pretty important for your children’s sake that you live really close together geographically. Trying to get them to and from school, if that’s where your drop-off and pickups are occurring, can be really problematic, especially in the Austin area where we have really bad traffic. If you are more than, I’d say, 15 or 20 miles away from each other, you’re looking at some super long commutes for children and I think judges tend to veer away from that in fairness to the children.
Holiday schedules tend to be more consistent, regardless of whether you are doing one of the 50 50 possession schedules, or one of the more traditional statutory possession schedules. For parents within 100 miles of each other, typically the possessory parent will have 30 days in the summer. A lot of my clients who elect the 50 50 possession schedule will end up splitting the summer 50 50 or they’ll even stay on the same schedule for summer, but they will each take an extended period of time, maybe two weeks, maybe three weeks, usually not longer than. Most of the time, at least in our standard orders, the orders dictate that you can’t take your extended summer vacation the first week of summer or the last week of summer before school starts because they want kids, back into their routine and and able to adjust to be ready for the school year to start.
Moms get Mother’s Day weekend and dads get Father’s Day weekend. So we want to make sure that with our summer schedules that we don’t interfere with Father’s Day weekend for dads so if you’re a mom in that situation, you’re not going to be able to elect Father’s Day weekend for your extended summer possession portion because he obviously automatically gets that just like you get the weekend for Mother’s Day that occurs in May during the school year.
The other holidays that occur in a standard schedule are the winter break, and the way that the standard possession schedule handles winter break is that we divide that time on the 28th of December. In the past it’s been the 26th of December but the legislature changed that a few years back. I think it was because a lot of parents that have to fly or use public transportation for exchanging kids, it was really problematic to be doing that so close to the Christmas holiday.
A lot of people that I know also elect to slice that winter break at the midpoint and so they will look at the calendar in any given year and count up how many days that there are in the break and they will exchange the child on the midpoint, whenever that is. It just really depends on what you’re able to do and I guess how well you’re able to communicate with the person that you're co-parenting with, because if you’re doing that midpoint that’s going to require some communication and being able to work together on an annual basis to split that.
If you are within 100 miles of each other then the Thanksgiving and spring break will rotate. If you’re more than 100 miles away, on the standard possession schedule, then the parent who is the possessory, who’s not the primary of the child, will get every spring break for an over 100 mile situation. They will also get 42 days in the summer. Again there are people that vary from that. I’ve had cases where parents are maybe living internationally and we had skype visitation or FaceTime that’s built into the possession schedule as well as maybe international holidays.
Other Holiday Schedules
The family law practice manual for Texas has schedules for people who are firefighters and police officers. There are also schedules for Jewish holidays and Muslim holidays. Aside from that, I’m not sure that there is standard language, but generally we can accommodate other holidays that are important to your family.
I’ve accommodated Canadian Thanksgiving, for instance, just by way of example. We’ve had Kwanzaa in our standard parenting plans. So really it’s just what works for your family. We can customize it as you need us to do.
A lot of times people want to have possession of their children on the child’s birthday if they don’t already have possession of the child on the birthday. That’s in the standard language as well as the parent’s birthday. There isn't standard language for Halloween, the Easter holiday, Passover, things like that, but again, we can work that in and people often do. It just depends on what you want and how detailed you want to be to that possession schedule.
The default in any possession schedule is that it is whatever you and your co-parent agree to, and then failing that agreement, it’s the possession schedule that you’ve picked in your order. So in the best scenario, I think the couples that honestly work the best together are probably the people that don’t refer to that decree very often, because they tend to just work together for what’s in the best interest of their child and what works for them. The people that hold each other’s feet to the fire and look at that schedule for every single thing tend to be the ones that come back again and again and end up paying lawyers more to try to enforce the order.?