Texas Standard Possession Schedule

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What is a “Standard” or “Expanded Standard” custody schedule?

Texas Family Code 153.311 begins the Texas possession schedule. The following sections detail out what exchanges dates/times are used in a Texas Possession schedule. These sections outline what possession and access schedule (AKA visitation schedule), is in the child(ren)’s best interests. Judges start from this schedule as a baseline. Judges tend not to deviate from it unless some part of it is unworkable due to a parent’s or child’s schedule, or there are other reasons why a deviation from the standard schedule is in the child’s best interest.

Typical reasons why a standard schedule might not be in a child’s best interests would be if a parent’s job has an unusual schedule, the parties agreed to a shared custody schedule going forward, or the parties have a history of a more unique/shared schedule in the past that’s been working for the child(ren).

Healthcare workers, first responders, workers in the airline/travel industry, or food service workers usually cannot do a standard schedule as their work schedules are so varied. It’s hard to stick to a standard custody pattern if your job schedule is all over the place or you work when children would not be in school/daycare.

When parties agree to a more shared-custody schedule then a Judge would not require they follow a standard schedule. Week on, week off or a 2-2-5 schedule are used by some parents to equalize the school-year weeks or to share the child-care duties between the parents. If parties agree to a unique/shared schedule then a Judge usually will not impose a standard schedule.

A shared custody schedule is something Judges will consider, even in a contested case, but they require a lot of good coordination and respectful communications between the parents. Homework folders, class projects, sports practices/games, extracurricular dates, all need a good level of organization between the two houses. If parties are unable to get along, or one party’s schedule has a lot of travel/variations, then a shared custody schedule might not work. Judges do not want to setup a schedule just for it to be unworkable and then the parties are back to fighting or back in court.

In the end, a visitation schedule is very fact-dependent on what’s going on between the parties, the ages of the child(ren), work schedules, extracurriculars, and other factors. Speaking with a local attorney who is familiar with your case’s courts, judges, and specific factors can inform you of what options are available in your case.

Common Mistakes with Split Custody

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Split Custody is becoming a more common choice for parents. Shared Custody, equal custody, 50/50 custody are other ways of describing the idea that each parent should spend approximately the same amount of time with their shared children after a divorce or split-up of the parents.

When parents call and ask “Can we ask for split custody?” The answer is yes, we can ask, but it needs to be a logistical good fit. If a parent travels a lot for work it might not be feasible to share custody in this way. If parents are going to live long distances from each other, this can present problems in an equal custody request. If parents can handle shared custody, it may be a good option. Judges have recently expressed being more open to split or shared custody, if it makes sense in that particular case.

Here are the top 5 common mistakes I see when parents elect a split or shared custody schedule:

(1) There’s no geographic restriction for where the kid(s) can live. One parent may want to stay in the same area but the other parent then wants to move away. Without these restrictions the other parent can move far away and that create lots of logistical problems for the parent who is staying.

(2) There’s no school designation for the kid(s) enrollment. If a specific school is important then the custody paperwork should designate where the kid(s) will be enrolled and what happens if neither parent lives in that school zone.

(3) There’s no forethought on travel between the parents’ new residences. What happens if someone moves further away an expected? Sometimes the marital residence is getting sold but there’s no planning for where parents are moving after divorce and the house gets sold. Parents might get priced out of their neighborhoods when they go from two incomes down to one and so must move farther out of town. That creates travel problems for school drop offs, extracurricular participation, or custody exchanges.

(4) There’s no forethought on extracurricular schedules. Sometimes a child’s practice times change days to the other parent’s days of the week, or events happen on weekends that cover both parent’s weekend time with the child. What happens when there are travel concerns for getting the child to an event/practice/game? What happens if one parent does not follow through on getting the child to practices? To games? To performances? Can the other parent provide that transportation? What notice needs to be provided?

(5) Not using a shared child-calendar. Parents who do not live in the same house anymore should be using an online calendar and updating it with healthcare appointments, extracurricular events, birthday parties, and school events. Both parents should be able to edit the calendar to add/change it when/if needed. Parents should be notifying each other when and why the calendar gets updated so there are no surprises.

When asking if split custody, shared custody, or equal possession custody is right in your case you should call a local attorney who can review your specifics and advise if these options might be a good fit for you.

Can I participate in my child’s school events?

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When parents are separated a common question is if they can attend school events. Can I attend my child’s holiday party, Thanksgiving lunch, Christmas or Winter celebration, Valentines Day events, etc.? For parents with a visitation/possession and access schedule, the next question usually is, can I attend even if it’s not my visitation day?

In Texas, if parents have a common custody schedule, it likely will list each parent’s rights. This list usually follows Texas Family Code 153.073 rights. Included in that list will be a line saying each parent has the right to attend school activities, including school lunches, performances, and field trips. This is true regardless of the visitation schedule.

Participating in your child’s school, and showing them support in this area, can boost a child’s performance, improve their emotional perception of school, strengthen parent-child bonds, and give you insight into your child’s world away from home. School is where children spend the majority of their time on weekdays. Getting to know the teacher, other school officials, the classroom, and other classmates will enrich your conversations with your child. All these factors are in the best interests of the child. For this reason the Texas Family Code has ensured that parents can attend school related activities, regardless of whether “it’s their day to have the kids,” or not. Be the chaperone on the school trip, volunteer for the class party, come in for career day, all are open opportunities for the parent.

There are some situations where this right to attend school activities is not the case, e.g., when there are protective orders, non-typical possession schedules, or curtailed rights due to violence or drug/alcohol issues. Check your court orders to see if you have this right to attend school activities, including school lunches, performances, and field trips, before you show up at school. Consult with an attorney if you need help reviewing your court orders or requesting a copy from the courthouse.

What is Mediation?

In Texas, Mediation is a formal meeting, with all parties and attorneys, where everyone tries to reach an agreement to settle the case. In Mediation, unique and creative solutions can be explored and, if an agreement is reached, then it will be binding (non-revocable) on all parties and finalize the disputes.

Mediation is commonly used in Texas court cases, especially in Divorces and Custody cases. Texas Family Code 6.602 provides that, on a party’s Motion or the court’s own motion, the case can be referred to mediation. If a settlement agreement is signed by all parties and attorneys then it is binding on all parties. This means that the agreement cannot be revoked, changed, set aside, or modified. The only instances of Judges not rendering an Order on a valid Mediated Settlement Agreement are when there are child-safety concerns not adequately addressed in the agreement, or if there is a detail not addressed in the settlement that the Judge needs to clarify. The usual example is when some criminal activity, arrests, or apparent drug/alcohol issues present themselves AFTER the settlement agreement and those issues change the landscape of the case drastically. Vague language in an agreement is subject to interpretation and so it’s importation to be thorough and specific in your mediation settlement details.

Mediation is commonly held via Zoom, Microsoft Teams, Google Meets, or similar virtual platform. In-person mediation session can be scheduled, but it will depend on the mediator. If a party wants to sit with their attorney and log-in together, this is a popular option for clients who want to be in-person with their attorney but not necessarily with the mediator.

Mediation is a private and confidential process. Many mediators do not allow third parties (other family or friends) to participate in the mediation process unless all parties agree in advance. Any discussions had at mediation are confidential and cannot be brought up in court later. Mediators cannot be subpoenaed to testify in court nor can their records be subpoenaed/disclosed to the Judge. The purpose of this confidential process is to allow parties to communicate settlement ideas freely without fear of future repercussions or damaging their position in court. During mediation parties are not usually in the same room or same virtual screen. It is the mediator’s job to be the messenger and communicate settlement offers back and forth between the parties, to minimize interactions and reduce conflict/stress.

Mediation is typically a cost that is split between the parities. Some mediators offer flat fees for a half-day or full-day session. Those costs vary from a few hundred dollars per party to over a thousand dollars. Cost depends on the experience of the mediator, length of the session, and location of the case/mediator. Some mediators offer an hourly rate and, if negotiations are quick, that can save on costs. It is important to choose a mediator who has experience in your type of case. They will be more familiar with the law, the local courts/judges, and what’s typical for similar cases in your area.

It is important to speak to an attorney before attending mediation so you can know more about the process, what to expect, and settlement possibilities for your specific case facts.

Can you Enforce a Temporary Order?

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Is it possible to Enforce a Temporary Order while a divorce is pending, or a custody case is pending? Sometimes, as part of the court process for divorces or custody cases, a Temporary Order hearing is held. A Temporary Order hearing will usually address short-term fixes for issues that cannot wait for a final hearing. Custody issues, child support changes, access to financial accounts in a divorce, use of a house or other property while a divorce case is pending, all are usual topics for Temporary Orders.

Once a Judge makes a ruling in Temporary Orders, those Orders are Enforceable by contempt. See Texas Family Code Sec. 157.001 The Enforcement should be filed in the same court that issues the Order (the court of continuing jurisdiction). Temporary Orders also include Temporary Restraining Orders, local Standing Order violations, Injunction violations, and any other Temporary Order rendered (ordered) by the Court.

If a party is violating the court’s Order, a party will need to quote the language you feel is at issue and then describe how the other party is violating (breaking) the court’s order. A common example is child support non-payments. If a party was ordered to pay a certain amount per month and is not paying as ordered then you quote the child support order language and the fact that payments have not been made for X number of month(s) and the total amount unpaid (arrearages). Same pattern for any other violations. If future violations are expected you can mention that and so include similar future violations for the Judge’s consideration when the hearing is held. The party on the receiving end of an Enforcement may file defenses to an Enforcement, but evidence must be submitted supporting those defenses. Child support defenses (excuses for nonpayment) are very specific and require them to be filed in a pleading before the hearing. See Texas Family Code Sec. 157.008.

If you need an Enforcement of a Court Order, or Defense against a court order, it’s important to consult with a local attorney who knows the law, the local Judges, and can give you good advice on your specific issues.

Can I date someone during my divorce?

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Dating while a divorce is pending is a common question. Can I date while going through a divorce? Is it OK to date someone even though the divorce is not final? Can I start dating if my spouse and I are separated but not yet divorced?

In Texas, there is no “legal separation” step in the divorce process. Just because you are living apart, will be living apart, have been living apart, does not mean you should start dating.

The best advice is to not date, at all, until the divorce is finished. Even if everyone “is on the same page” or “he/she knows the marriage is over so what’s the big deal?”

Dating while going through a divorce usually stirs up emotions. Emotional reactions/decisions in a divorce are usually the wrong ones. New parties start getting involved in the divorce and trying to influence the outcome. Parties may be agreeable when first separating, but when a new dating partner is thrown into the mix that sometimes changes a party’s priorities.

Dating while going through a divorce can also prolong the divorce process and complicate property divisions. Waste claims start appearing and tempers flare when new paramours are brought around children. That leads to other overly emotional behavior and poor decisions.

Do not start dating until after the divorce is finalized. Keep your focus on that process. Dating while divorcing usually leads to more trouble than it’s worth, in the end.

Changing child’s primary residence within one year of prior Order

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If a parent is trying to go back to court to change primary custody within a year of the last order they better have a good reason. When there is a Court Order that designates the primary residence for a child, and a parent wants to quickly go back to court to change who designates that primary residence, there is a high threshold to get into court if the modification is filed within 12 months of the last Order. This is to prevent a party from jumping back into court quickly after prior agreements or rulings and costing everyone more time and money. Sometimes these immediate modifications are done out of spite, so a law was created to sift out the harassing re-litigation but allow truly needed quick changes if new problems arise after the last Order.

In Texas, if a suit seeking to modify who has the exclusive right to designate the primary residence of a child within one year after the earlier of the date of the rendition of the order (when the Judge signed the Order) or when the parties signed their mediated settlement agreement, then an affidavit alleging certain facts must be included with the filing. See Texas Family Code 156.102

If a parent is wanting to swap who is the primary parent, i.e., where the child primarily lives, soon after the last Order/Agreement then they have to comply with this section of the Texas Family Code. The law says the parent wanting the change/modification of the primary residence designation must include in their filing an affidavit stating (1) the facts the parent believes show the child’s living with the other parent is endangering the child’s physical health or is significantly impairing the child’s emotional development; (2) that the other parent who has the right to designate the primary residence in the old Order agrees with the change in primary custody; OR (3) that the person who has the exclusive right to designate the primary residence has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the child’s best interest. Tex. Fam. Code 156.102(b)

Failure to include an affidavit with these facts might result in the court denying to schedule the case for a hearing (or a party to object to the scheduling). Courts have dismissed cases after finding affidavits insufficient. The other parent can request a hearing on the sufficiency of the affidavit to meet these requirements. The affidavit is the focus of that hearing so it needs to meet the requirements of the statute.

What constitutes an environment that would endanger a child’s physical health or impair their emotional development? The easy answer is: physical abuse, usually shown with a parent or other household members getting arrested or CPS is involved; drug or alcohol use by the primary parent that is having a detrimental effect on the child (marijuana is still illegal in Texas and many Judges have a zero tolerance policy while others are more lenient. Best to consult local counsel who knows your Judge’s tendencies.); or significant emotional abuse that’s affecting the child to an extent where they’re suffering in school or showing sever signs of depression that can be tied back to that primary parent’s actions/inaction. Other situations might be enough, but they are fact dependent. You should consult a local attorney who can review these with you and give an opinion on sufficiency to meet the statute.

Keep in mind that the relevant facts need to have occurred AFTER the last Order/Agreement. This is not a chance to re-litigate a case on evidence/facts already considered.

Steps for a Divorce or Custody case

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Usual steps for a Custody or Divorce case

When people call for the initial consultation they want to know what the usual steps are for a custody case, divorce case, or Modification/Enforcement case. This above flow chart is the best visual to show what comes first, what’s next,and what to expect. Some steps are optional and sometimes steps get repeated. It depends on the facts of your case and what is happening while the case progresses. A consultation with an attorney will give you a more precise projection of where your case will go.

When will Courts go back to in-person hearings?

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Most Texas State Courts have been conducting virtual hearings since the COVID-19 pandemic began. In the Spring and Summer of 2020, Courts, Attorneys, and Litigants had a steep learning curve to get acclimated to virtual hearings.

Courts have continued with virtual hearings since the COVID-19 pandemic began, through 2020, and now through most of 2021. Most major cities in Texas have stayed virtual, while many medium and smaller cities have started transitioning back to in-person hearings. Most courthouses have continued working, in some form or another, throughout the pandemic. Once the vaccines were approved, and a critical amount was administered, courts felt comfortable transitioning back to in-person hearings. Some in-person hearings began occurring in the large and medium sized cities in the Summer of 2021.

As of the date of this post, the COVID-19 Delta variant has spiked cases and some courts are either going back to virtual hearings or slowing/stopping their expected transitions back to in-person hearings. Each county courthouse makes decisions on in-person vs virtual hearings with each Judge having authority over their own courtrooms for details of mask wearing (or not), physical barriers in the courtroom (or not), and other accommodations.

In Texas, the Texas Supreme Court has issued many Emergency Orders regarding the COVID-19 State of Disaster. This has guided the courts, attorneys, and litigants on what special, short-term changes have been approved for Texas State Courts.

As the pandemic continues to unfold, and new rules and recommendations are promulgated by the Federal, State, and Local governments, the status of virtual vs in-person hearings will continue to be in flux. Local attorneys in your jurisdiction, through the efforts of their local bar associations and courthouses, will know the status of your court and your hearing.

How to Get Child Support Offsets

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When child support is unpaid it builds up as an arrears. In Texas, the Attorney General’s child support division keeps track of these child support arrears and the past-due balance. This includes child support and any cash-medical-support owed for one parent paying the other for monthly health insurance costs.

In Texas, sometimes child support builds up because the custody schedule has changed and parents agree between themselves to start sharing custody or flip custody. When this happens they assume child support will automatically stop. This is not the case. You need a new court order changing the child support before anything will stop or change from the old order.

If you have this situation, where custody was changed but child support was not, you might be entitled to offsets on that child support that built up during the changed possession time. The credit is only available for those changed months and you only get a credit for the amount due under the old order, not the other parents theoretical child support they might’ve owed due to the change in custody. You need to go back to court if you want child support from the other parent following a custody switch.

Texas Family Code 157.008 provides

Sec. 157.008.  AFFIRMATIVE DEFENSE TO MOTION FOR ENFORCEMENT OF CHILD SUPPORT.  
(a)  An obligor may plead as an affirmative defense in whole or in part to a motion for enforcement of child support that the obligee voluntarily relinquished to the obligor actual possession and control of a child.
(b)  The voluntary relinquishment must have been for a time period in excess of any court-ordered periods of possession of and access to the child and actual support must have been supplied by the obligor.
(c)  ...
(d)  An obligor who has provided actual support to the child during a time subject to an affirmative defense under this section may request reimbursement for that support as a counterclaim or offset against the claim of the obligee.
(e)  An action against the obligee for support supplied to a child is limited to the amount of periodic payments previously ordered by the court.

This means that, as long as you file a claim putting everyone on notice that you will argue this in court, that the other parent agreed to the custody change (you didn’t just take off with the child(ren) over their objection), and you’ve supplied care for the children while with you. Proof can be school records showing the change of address, doctor bills or paperwork showing the new address, and care can be any type of financial support, i.e., food, clothing, shelter. This means the children have to actually live with you, not with another family member, friend, or on their own.

These claims and providing proof in the right way during a hearing can be tricky. It’s best to enlist the help of an attorney if this is a factor in your case.