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Fathers going through divorce in Texas often face an uphill battle. Many times, fathers have to leave the marital home, end up seeing their children less often, and are usually ordered to pay child support directly out of their paychecks. Fathers are also regularly ordered to have visitation according to the Texas Standard Possession Order.

Standard Possession in Texas

The implementation of a “Standard Possession” order often represents a substantial decrease in time from seeing a child every day during the marriage or relationship. While 50/50 or equal time is not a default schedule in Texas, there has been a recent push to provide fathers more time with their children than in years past. In 2021, the Texas Legislature amended the Texas Family Code to expand the time a non-custodial parent, usually the father, can have with their children if the non-custodial parent lives 50 miles or less from the custodial parent. Thus, fathers living close to their exes have a better chance to maintain a more frequent and stronger parent-child relationship with their children. This means it is advantageous for a father to live within a 50-mile radius from his ex, so that he can have more time with his kids.

Expanded Time for the Non-Custodial Parent

The 2021 updated law is found in Texas Family Code § 153.3171. This law applies to cases filed on or after September 1, 2021. This Expanded Standard Possession law provides for the non-custodial parent to have time with their child approximately 47% of the time. This is a departure from the pre-2021 Standard Possession Orders which gave the non-custodial parents, usually the father, significantly less than 47% of the time.

The 2021 changes are most apparent during the school year, when the non-custodial parent has visitation on their respective weekends starting from the time the kids get out of school on Thursday until the beginning of school the following Monday. The addition of having the kids on Thursday and Sunday overnights (as opposed to just Friday and Saturday overnights under the traditional Texas Family Code standard possession order) goes a long way to helping the non-custodial parent have more quality time with their children. Since the non-custodial parent is often the father, this change almost doubles the time a dad spends with his kids during the school year. There are some other minor changes that expand holiday visitation under this new possession order, but the big victory for divorced dads or separated dads will be having their kids more during the school year.

Of course, the Court will still apply the “best interests of the child” standard, which could prevent the non-custodial parent from obtaining this expanded schedule, and instead order the traditional Standard Possession Order under the Family Code. However, in the majority of cases where the parents live within 50 miles of each other, the Court will apply this Expanded Standard Possession schedule, most often benefitting the father.

This extended possession schedule for divorced or separated dads living 50 miles or less from their exes is not mandatory. The divorced dad or separated dad can opt-out of this schedule and keep the traditional standard visitation schedule.

Modifying Pre-2021 Standard Possession Orders

Unfortunately, the shift to the Expanded Standard Possession Order, and the applicable Family Code Sections specifically state that the mere change in the law is not sufficient to constitute a material and substantial change of circumstance to change a prior court order from the standard possession to this expanded possession schedule. Thus, fathers with a pre-2021 court order mandating the traditional standard possession schedule are not guaranteed to obtain an Expanded Standard Possession Order when they file a modification lawsuit if the only change in circumstances is the mere passage of the 2021 law.

With that said, a father should strongly consider living within 50 miles or less from his ex in order to increase his time with his children under the updated Texas Family Code.

For further explanation or help with your divorce or child custody case, contact the experienced family lawyers at Cowles Thompson.


Avatar of Jack Beesley
Jack Beesley is Of Counsel in the Cowles Thompson Family Law and Commercial/Business Litigation practice areas. His Family Law experience includes divorce, custody, child support, enforcement of custody and support actions, SAPCR (Suit Affecting the Parent- Child Relationship), name changes, father’s rights, and termination of rights.