If you ask most parents what they value most, they will say their children. Perhaps, then, it is not surprising that many parents facing divorce or separation are most concerned with how their child’s time will be divided when the case is finalized. In Texas, “possession” is the legal term used to describe the time a child spends with each parent. Increasingly, Texas parents are interested in 50/50 possession schedules.

 

The Texas Standard Possession Order

The default possession schedule in Texas divorce and custody cases is not 50/50; instead, the Standard Possession Order (“SPO”)1  is the default schedule for dividing a child’s time between parents. Under the SPO, one parent determines a child’s primary residence and the other has possession on the first, third, and fifth weekends of each month; Thursday evenings for two hours during the school year; and for a thirty-day period in the summer. Parents alternate possession for Thanksgiving, Spring Break, and the first and second halves of Christmas Break each year. Most of the time, a parent can elect to extend the SPO to the “Expanded Standard Possession Order” or “ESPO.” During the school year, a parent with an ESPO also has possession overnight on Thursdays and overnight on Sundays following the 1st, 3rd, and 5th Fridays of each month. Texas law mandates a “rebuttable presumption” that the SPO/ESPO is in the child’s best interest, but courts can deviate from that standard when the evidence proves the SPO/ESPO would be inappropriate or unworkable.

 

50/50 Possession

In some cases, courts order 50/50 possession schedules. For example, when parents have been operating under a 50/50 schedule by agreement prior to a court intervening, a court might determine continuing a 50/50 schedule is in the child’s best interest. Most often, when Texas parents have a 50/50 schedule, it is pursuant to an agreement made between the parties and approved by the court. Two popular “50/50” schedules are the “week on/week off” schedule, where parents exchange possession of the child weekly, or the “2/2/5/5” schedule, where one parent has possession on Monday and Tuesday, the other on Wednesday and Thursday, and alternating weekends (Friday through Monday morning).

 

Texas House Bill 803

Texas House Bill 803, the “Equal Parenting Bill,” which was introduced this session, would do away with the SPO/ESPO and require courts to presume that each parent should have exactly fifty percent (50%) of a child’s time.2  If HB 803 is passed, courts would have discretion to determine how exactly to divide the child’s time in half. Similar bills have been introduced many times in Texas and have not yet been passed. HB 803 is supported by father’s rights groups such as Equal Justice Task Force,3  who believe the bill would help children and prevent litigation. However, the bill is opposed by some family lawyers, the Family Law Foundation, and others.4  Opponents believe the bill improperly focuses on the desires of parents rather than the best interests of children and could lead to increased custody litigation.

When parents live near each other and can communicate effectively about their children, a 50/50 schedule can work. However, in many cases, parents in child custody cases cannot communicate well with each other, which is unsurprising considering they are divorced or separated. In those cases, 50/50 possession often does not work well for parents or children, and it can cause increased custody litigation. In fact, the Texas Family Law Foundation states 72% of lawyers who handled 50/50 custody arrangements had to return to court for modifications because the schedule did not work.5

 

When 50/50 May Not Work

When is a 50/50 arrangement likely to cause problems? Here are a few warning signs that 50/50 might not work for you:

  1. Your case is high conflict – 50/50 parenting time requires parents to communicate with each other, see each other more often, and cooperate to handle things like homework and medical care. In high conflict cases, parents cannot communicate well, so 50/50 can increase issues such as children having to carry messages between parents, children being quizzed about one parent by the other, and/or children hearing one parent disparaged by the other.
  2. Your child has special needs – Many times, children with special needs have more difficulty transitioning between homes than other children, and the problem can be exacerbated with a 50/50 schedule. Further, oftentimes one parent has more knowledge and experience guiding their child through the challenges of having special needs, and in such situations the child often does better living with that parent.
  3. One parent has “issues” – 50/50 will not work when a parent is abusive or has issues such as drug addiction, alcohol abuse, or untreated mental illness. A 50/50 schedule is harmful to children when one parent is not a safe and healthy parent.
  4. You live far from your ex – 50/50 schedules are very difficult when parents live a distance from each other. Children oftentimes end up suffering most, because they end up spending too much time in a vehicle traveling between homes or between school and home.
  5. Your child is young – While all children benefit from stability, reports suggest small children have the most trouble going back and forth between homes. Frequently , such kids will have no real sense that they have a “home,” but rather, that they visit “Mom’s house” and “Dad’s house.” In these instances, a 50-50 schedule might not be best.

While many Texans support HB 803, others are concerned that the bill, if passed, would potentially harm children and lead to increased litigation. As of the date of publication, the bill has not yet been scheduled for a hearing.

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  1. https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm#153.252
  2. https://legiscan.com/TX/sponsors/HB803/2021
  3. https://equaljusticetaskforce.com/
  4. https://www.texasfamilylawfoundation.com
  5. https://s3.amazonaws.com/membercentralcdn/sitedocuments/tfl/tfl/0902/1495902.pdf?AWSAccessKeyId=AKIAIHKD6NT2OL2HNPMQ&Expires=1617646680&Signature=JuVWDx%2FTFzQlLwwZ5WGxKQdRd7w%3D&response-content-disposition=inline%3B%20filename%3D%22FAMLAW%2E%20KILL%20BILL%2Ecolumns%2Epdf%22%3B%20filename%2A%3DUTF%2D8%27%27FAMLAW%252E%2520KILL%2520BILL%252Ecolumns%252Epdf

 

By Published On: April 7, 2021Categories: Family LawTags: , , , , , ,

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ABOUT THE AUTHOR:

Avatar of Claire James
Claire James is a trial lawyer whose practice focuses on helping businesses and individuals protect their most valued assets. As a seasoned commercial litigator, Claire frequently assists companies seeking to protect their trade secrets, uphold their employment agreements, and maintain their competitive edge. Claire is particularly proficient at obtaining and resisting temporary restraining orders and temporary injunctions and obtaining and resisting summary judgment. Claire also represents clients in all types of family matters, including divorces, custody disputes, enforcement cases, and modifications. A former Child Protective Services worker, Claire understands the financial and emotional cost of litigation — especially when children are involved.