Introduction
In Texas divorce cases involving children, one of the most significant aspects is determining child possession and access rights between parents. While many seek a 50/50 possession arrangement (often termed “equal custody” or “joint custody”), Texas law focuses on the best interests of the child rather than an automatic equal division of time.
Understanding 50/50 Possession in Texas Divorce Law
Texas law uses the term “conservatorship” rather than “custody,” emphasizing shared parental responsibilities under joint managing conservatorship. However, joint conservatorship does not guarantee equal physical time or a 50/50 possession arrangement. Instead, possession orders (also referred to as access schedules) dictate how time is divided between parents, ensuring both maintain a strong relationship with their child while prioritizing the child’s best interests.
A primary example of such access schedules is the Standard Possession Order (SPO) outlined in the Texas Family Code (§153.312 – §153.317). This order provides a default schedule for non-custodial parents (commonly referred to as possessory conservators) to have possession of their children, typically when both parents live within 100 miles of each other. The SPO serves as a guideline for courts when parents cannot agree on a customized schedule, ensuring consistent and fair access for the non-custodial parent.
Here is a summary of the main components of a Texas Standard Possession Order:
- Weekend Possession
- First, Third, and Fifth Weekends of Each Month: The non-custodial parent has possession from 6:00 p.m. on Friday until 6:00 p.m. on Sunday. If both parents agree, they may adjust the pick-up time to when school is dismissed on Friday. If it is your weekend you can pick up from school on Thursday and return on Sunday.
- Thursday Evening During the School Year
- The non-custodial parent has possession each Thursday during the school year, typically from 6:00 p.m. to 8:00 p.m. If both parents agree, this may be extended to the time school resumes Friday morning, allowing the child to stay overnight
- Holiday Possession
- Spring Break: Alternates each year, with the non-custodial parent having the child during the entire spring break in even-numbered years.
- Thanksgiving: Alternates each year, with the non-custodial parent having the child during the entire Thanksgiving break in odd-numbered years.
- Christmas Break: The Christmas holiday is split, with one parent having the child from the time school dismisses for the break until noon on December 28, and the other parent having the child from noon on December 28 until school resumes.
- Extended Summer Possession
- 30 Days in the Summer: The non-custodial parent is entitled to 30 days of possession during the summer, which can be consecutive or divided. The non-custodial parent must notify the custodial parent by April 1 of each year if they wish to specify different dates than the standard July 1 to July 31 period.
- Mother’s Day and Father’s Day
- Mother’s Day Weekend: If the mother is the non-custodial parent, she has possession of the child from 6:00 p.m. on Friday until 6:00 p.m. on Mother’s Day.
- Father’s Day Weekend: If the father is the non-custodial parent, he has possession from 6:00 p.m. on Friday until 6:00 p.m. on Father’s Day.
- Child’s Birthday
- The non-custodial parent may have possession of the child on the child’s birthday from 6:00 p.m. to 8:00 p.m., provided this does not conflict with the other parent’s weekend or holiday possession time.
- Long-Distance (Over 100 Miles Apart) Modifications
- If the parents live more than 100 miles apart, the non-custodial parent typically has possession for the same holidays, but with adjustments:
- Weekends: Limited to one weekend per month, at the non-custodial parent’s discretion, with advance notice.
- Extended Summer Possession: Entitled to 42 days instead of 30.
- Parental Notification and Changes
- 60 Days Advance Notice for Summer Possession: The non-custodial parent must give written notice of their chosen summer dates by April 1, or default dates apply.
- Holiday Notifications: Both parents must notify each other of any planned travel or significant changes in a reasonable timeframe.
- Right of First Refusal (optional)
- Some SPOs include a “right of first refusal,” where the custodial parent must offer the other parent the opportunity to care for the child if they need alternative childcare for an extended period.
The SPO seeks to balance the child’s best interests with fair access for both parents. Parents can agree to modify this schedule to better fit their situation, but any modifications must generally be approved by the court to become legally binding.
Case Law Examples Illustrating 50/50 Possession Outcomes in Texas
- Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2001)
- Overview: This case set a precedent for considering each parent’s impact on the child’s educational and developmental needs.
- Outcome: The court upheld a 50/50 possession arrangement, noting that both parents had a positive and supportive influence on the child’s growth, aligning with the best interest standard.
- In re Marriage of Christensen, 570 S.W.3d 933 (Tex. App.—Texarkana 2019)
- Overview: This case involved a dispute over 50/50 possession, with one parent seeking greater control over the child’s activities.
- Outcome: The court denied a strict 50/50 split, citing one parent’s history of limiting access and demonstrating a lack of cooperation, favoring a primary residence designation instead.
Divorce does not only impact child custody but also estate planning and wealth transfer strategies. Divorce necessitates a review of estate plans to ensure assets are distributed according to revised wishes and legal mandates. Key considerations include updating wills, revising beneficiary designations on life insurance policies and retirement accounts, and reassessing any trusts established during the marriage. Learn more about these critical considerations in the article, “The Impact of Divorce on Estate Planning and Wealth Transfer in Texas: What You Need to Know”
How can we assist?
50/50 possession in Texas divorce law aims to balance parental involvement and the child’s best interests. While equal time-sharing arrangements are achievable, they depend on factors like the child’s needs, parental cooperation, and stability. By understanding the principles, strategies, and case law behind 50/50 possession, parents can approach custody negotiations more effectively.
At our firm, we have extensive experience assisting clients with child custody cases. Our team includes a board-certified family law attorney, with advanced business degrees, and a specialist in negotiation and mediation. Contact us at 832-538-0833 to schedule a consultation and get personalized legal advice on your situation.