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 custody time with their children. I have briefly touched 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 Custody 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 Interest of Children
One of the things a parent will have to overcome when they are asking for equal or 50/50 custody 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:”
- provides reasonable minimum possession of a child for a parent named as a possessory conservator or joint managing conservator; and
- 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
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
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:
- the caregiving provided to the child before and during the current suit;
- the effect on the child that may result from separation from either party;
- the availability of the parties as caregivers and the willingness of the parties to personally care for the child;
- the physical, medical, behavioral, and developmental needs of the child;
- the physical, medical, emotional, economic, and social conditions of the parties;
- the impact and influence of individuals, other than the parties, who will be present during periods of possession;
- the presence of siblings during periods of possession;
- the child’s need to develop healthy attachments to both parents;
- the child’s need for continuity of routine;
- 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
If parents can agree to a 50/50 custody 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 and the case goes to Court then in most circumstances:
- Both parents will be name Joint Managing Conservators
- One Parent will be name the Primary Parent who get to say where the child lives
- One Parent will be paying child support
- One parent will get an SPO or an SPO with Electives
- There will be a geographic restriction where the Primary Parent must live so long as the other parent lives within that geographic restriction as well.
Something to be aware of is that even if a 50/50 custody schedule works for you now it may not in the future and you may be back in court asking for it to be change. Some reasons why a 50/50 schedule may no longer work include:
- Parents move away
- Needs change
Where Parents Live Can Be a Problem with 50/50 Splits
Typically, I see 50/50 custody time splits when parents live near each other. Often, one parent stays in the marital home with the children, while the other moves nearby.
That usually makes these 50/50 arrangements work because the commute between parents is very short.
Overtime lives change and one parent or the other may move away for a job, family, or some other reason. A 50/50 custody visitation schedule will become more challenging the greater the distance because of commute for the children. The time spent commuting becomes a drain on the children and the parents. Additionally, it may not be in the children’s best interest.
Needs of Children Change
Parents and children’s live change are going to change. An example of this could include children joining extracurricular activities that make it difficult to keep them in constant commute. In another scenario, children may develop friendships at school and dislike living away from their friends half the time.
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Other Articles you may be interested in:
- Can I get child support while my Texas divorce is pending?
- Do I Have to Pay Child Support if I Have Joint Custody of My Child in Texas?
- Can I Sue My Ex for Retroactive or Back Child Support in Texas?
- Child Support and College Tuition in Texas
- Texas Child Support Appeals
- In Texas are Child Support and Visitation Connected?
- Why Ignoring Child Support Obligations is a Bad Idea in Texas
- Can I get child support and custody of my kids in Texas if we were never married?
- Child Custody Basics in Texas
- 6 Mistakes that can Destroy Your Texas Divorce Case
Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyers
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