Can I Get 50/50 Time with My Children?

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Family Lawyer in Houston– One of the things that comes up in many of my consults is a parent who tells me that they want to get 50/50 time with their children. I have briefly touch on this topic in a previous blog article, “10 Myths About Divorce in Texas, Part One.”

In today’s blog article, I will go into a little bit more detail about how the family code addresses this issue.

50/50 TIME WITH CHILDREN IF CASE GOES TO COURT

Texas Family Code Section 153.135 states that Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child to each of the joint conservators.”

STANDARD POSSESSION ORDER (SPO) PRESUMED TO BE IN BEST OF CHILDREN

One of the things a parent will have to overcome when they are asking for equal or 50/50 time with their children is that a “Standard Possession Order” is presumed to be in their best interest.

Under Section 153.252 of the Texas Family Code Provides “in a suit, there is a rebuttable presumption that the standard possession order in Subchapter F:”

1. Provides reasonable minimum possession of a child for a parent named as a possessory conservator or joint managing conservator; and
2. Is in the best interest of the child.”

ELECTIVES TO THE SPO

“If elected by a conservator, the court shall alter the standard possession order under Sections 153.312, 153.314, and 153.315 to provide for one or more of the following alternative beginning and ending possession times for the described periods of possession, unless the court finds that the election is not in the best interest of the child.”

If a parent makes elections under 153.317 of the Texas Family Code it will give them additional time with their child. The burden then shifts to the other parent if contested to show why it would not be in the best interest of the child for the requesting parent to have those elections.

THE COURT CAN DO SOMETHING OTHER THAN AN SPO

Houston Family Law Lawyer– Generally, Family Courts are not creative when awarding visitation. In most circumstances, they only award either a Standard Possession Order (SPO) or a Standard Possession Order with Electives.

If there has been family violence or another good reason they may award a visitation schedule that involves supervised visitation.

However, under 153.253 they can award a different visitation schedule if it can be demonstrated that a SPO is unworkable. It provides that:

“The court shall render an order that grants periods of possession of the child as similar as possible to those provided by the standard possession order if the work schedule or other special circumstances of the managing conservator, the possessory conservator, or the child, or the year-round school schedule of the child, make the standard order unworkable or inappropriate.”

If you look at the language though you will notice the Judge is still required to “…grants periods of possession of the child as similar as possible to those provided by the standard possession order…”

YOU CAN AGREE TO WHATEVER VISITATION YOU WANT

No one is going to make you as parents follow the possession order if you agree. Every Texas Possession Order has the following language built in:

“IT IS ORDERED that the conservators shall have possession of the child at times mutually agreed to in advance by the parties, and, in the absence of mutual agreement, it is ORDERED that the conservators shall have possession of the child under the specified terms set out in this Standard Possession Order.”

In other words, if you as parents can agree you can do it. However, should you as parents start fighting then you need to follow the Order which serves as the tiebreaker to your disagreement.

CHILDREN LESS THAN 3

Family Lawyers in Houston– SPO’s and SPO’s with Electives are presumed to be in a child’s best interest once they are three. However, there is no presumptive visitation order for a child less then three.

Under Section 153.254 of the family code it provides that “the court shall render an order appropriate under the circumstances for possession of a child less than three years of age. In rendering the order, the court shall consider evidence of all relevant factors, including:

1. The caregiving provided to the child before and during the current suit;
2 The effect on the child that may result from separation from either party;
3. The availability of the parties as caregivers and the willingness of the parties to personally care for the child;
4. The physical, medical, behavioral, and developmental needs of the child;
5. The physical, medical, emotional, economic, and social conditions of the parties;
6. The impact and influence of individuals, other than the parties, who will be present during periods of possession;
7. The presence of siblings during periods of possession;
8. The child’s need to develop healthy attachments to both parents;
9. The child’s need for continuity of routine;
10. The location and proximity of the residences of the parties;”

What I have seen in practice is sometimes a Court will give a parent who has actively been involved in the child’s life an SPO. If the parent has not actively involved they may give them step up visitation that turns into a SPO.

NO CHILD SUPPORT BECAUSE OF EQUAL TIME

Invariably when I am asked about equal time with the children the topic then turns to not having to pay child support. Whoever, I am talking with has some buddy who got equal time and because they got equal time they did not have to pay child support.

However, Texas Family Code Section 153.138 states that, “The appointment of joint managing conservators does not impair or limit the authority of the court to order a joint managing conservator to pay child support to another joint managing conservator.”

The Court will always care more about the best interest of then children than what either party thinks is “fair.” If the case goes to Court it is entirely up to the trial court judge to decide who, if anyone, will pay child support, and what that amount will be.

50/50 SPLIT TIMES EASIEST IF PARTIES AGREE IN MEDIATION

Family Law Attorneys Houston– If parents can agree to a 50/50 split time in mediation it will be easy to push that agreement through the Court System. If parents are not able to agree in mediation… Continue Reading