Navigating the complexities of the Standard Possession Order

When going through a child custody case in Texas there are several ways to divide possession time between you and your co-parent. The most common method for doing so is via the Standard Possession Order. A Standard Possession Order (SPO) sets a schedule for both of your possession time with your child. The terminology used in these cases can get confusing when you consider that words like possession, access, and visitation are all used in this context. However, all these terms are used to refer to instances where you are in physical possession of your child at any given time. 

The basic confines of an SPO are that the non-custodial parent (parent with visitation rights) will be able to possess your child from 6:00 pm to 8:00 pm every Thursday and on the first, third, and fifth weekends of each month during the school year. Additionally, if you are the parent with visitation rights then you would be able to alternate possession during holidays with your co-parent and have at least one month of consecutive possession in the summer months. Your specific parenting plan may vary but this is what the Standard Possession as contained in the Texas Family Code states.

Where you and your co-parent exchange possession of your child will also be stated within the SPO itself. Therefore, you and your co-parent will not have to play a guessing game as to where you should drop off or pick up your child. You two may be able to work out agreements on the fly as far as where your child should be picked up but in general, you will go off what is contained in the court orders. Parents and children can benefit from this arrangement given that there is added stability and consistency provided in an SPO. 

Exceptions to using an SPO

As with many things in the law, there are exceptional situations where an SPO would not be appropriate to utilize. For one, if your child is under the age of three then the visitation arrangements of an SPO would not be in their best interests. This is because a child of that age would need to have more consistent time with one parent, probably mom, and would not be able to be away from her for an extended period. SPOs are better for older children who do not need a consistent level of contact with one parent or the other.

Another situation that may not mesh well with an SPO is when a child has a physical or mental disability. Again, an SPO is a regimented method of dividing parenting time throughout the year. If your child does not do well with these transition times going in between homes, then the SPO may be difficult for your little one. In cases like that you should be mindful to create a possession schedule that suits your child and is in their best interest.

Can you deviate from the SPO? 

Yes, you and your co-parent can deviate from your SPO. However, you must agree to do so. This means that you had better be sure that you and your co-parent agree with whatever modification you are making before you do so. For example, if you and your co-parent have agreed to switch possession over the next couple of weekends for whatever reason then you may do so. However, before locking in your plans it is advisable for you all to come to an agreement in writing or to have something concrete set up so there are no problems. 

The last thing that you would want to do is to come to an agreement in principle on how to change your possession order but then have your co-parent change their mind at the last minute. This type of thing does happen from time to time, and it can be a huge issue for families. Keep this in mind whenever you start to negotiate temporary changes to a court order with your co-parent. Sometimes this type of arrangement is unavoidable and must be entered. However, in other situations, you should strive to avoid temporary modifications done informally. 

Once you and your co-parent can no longer agree to an informal modification then you would need to go back to honoring the SPO. For this reason, it is probably best to make modifications done informally on a week-by-week basis instead of making plans for many months out. This way, you will not commit to something months in the future that your co-parent could pull the rug out from under you. 

Working with an experienced family law attorney with the Law Office of Bryan Fagan is a great way for you to work through problems with an established court order. Our attorneys can help you negotiate the type of modification that you need in a way that will not break your checkbook in half. We are in the courtrooms of southeast Texas every day advocating for our clients. We know what it takes to help people accomplish their goals.  A free-of-charge consultation with one of our attorneys is only a phone call away. 

Child support and SPOs

Most child custody orders set up child support payments to go through the Office of the Attorney General Child Support Division. The SPO is the minimum amount of possession time presumed to be in the best interests of a child concerning a noncustodial parent. Evidence would need to be presented to a court to show that an SPO would not be in the best interests of a child. 

An example of why an SPO may not be in your child’s best interests is if the non-custodial parent has had no contact with your child before now. This happens when a parent is largely an absentee parent but suddenly shows an interest in your child when your family law case is filed. A judge can see through this type of behavior. A parent can work their way up to an SPO as far as possession time but that can take some effort and diligence to build a relationship like this. 

Next, there can be concerns regarding family violence within your home. This history of violence can prevent a court from believing that it is in your child’s best interests to have an SPO with that parent. Family violence is especially relevant to your case if it occurred within two years of the family law case being filed. If you have previously had a restraining order against your co-parent that would be a piece of evidence that would need to be brought forward to the court’s attention. Many times, supervised visitation would be the best possession arrangement that a parent with a history of family violence could be awarded. 

The last situation where an SPO would not be in the best interests of your child would be if your child is under three years old. Children in this age group typically need to spend more time with their mothers than with their fathers. Much of the time there are biological reasons for this, such as the need to breastfeed. Mothers have a leg up when it comes to custody questions like this. However, fathers can turn the situation around and can be awarded more time by a judge in the future under the same court order. This is under a stair-step award of custody. A stairstep allows a parent to be able to win more time with a child over time. 

If you are in one of these situations, then you need to consider a few things before signing any child custody order containing a possession schedule. First, make sure that your attorney is not only aware of one of these situations being relevant to your case but also of any specific concerns you may have. Your attorney has likely encountered a situation like this before but you need to communicate specific thoughts and concerns that you may have to allow your attorney to negotiate on your behalf. Do not expect your attorney to be a mind reader. 

Next, you need to make sure that you read your court order before you sign it. Again, you are the last line of defense for your child. While your attorney should be reading through the document as well that does not mean that he or she isn’t prone to making a mistake here or there. Two heads are better than one, as they say. This is your child and your relationship with him or her is at stake here. 

If there is a mistake in the court order, make sure to bring that up with your attorney. Do not sign anything before you have had all your questions and issues addressed. The language should be specific enough to not only give you a good roadmap to follow throughout the year but also the ability to enforce the orders in the future if your co-parent violates them in any way. If the language is too vague or nonsensical then you have an unenforceable order that is not worth the paper that it is printed on. 

When you and your co-parent need to, you can come to informal agreements on custody issues. Everyone will run into problems that involve subjects like visitation conflicts with work, sick relatives, being sick yourself, and other things that come up from time to time. This is where having a good relationship with your co-parent will come in handy. Being able to talk through problems like this is a much better solution than constantly going to court to try and make modifications formally when something informal may suit your family better. 

You and your co-parent are free to try and make changes here and there as much as you need to without ever involving the court. This is what judges assume will happen in your lives. It would be foolish to expect to be able to follow these court orders perfectly until your child turns 18 years old or graduates from high school. Rather, it is much more likely that you and your co-parent would need to work out solutions to these problems along the way on your own, informally.

What your court orders represent is the fallback option that you and your co-parent would need to turn to unless an agreement can be reached on any matter related to your children. If you all want to make changes as you go, then that is ok. As long as the two of you can agree to those changes then the court orders do not come into play. However, as soon as the two of you cannot agree on those changes the court orders would go back into place.

Is there a difference between possession and access to your child?

Possession refers to the ability to be physically with your child. Possessing your child means physically being able to direct where your child goes and dictate who he or she spends their time with. On the other hand, access has more to do with being able to interact with your child without possessing him or her. An example of this would be attending a sporting event for your child. While at the gymnasium, you could cheer on your son. However, when the game is over you could head over to say hello to your child, but you would not be able to take your child home with you unless it was your visitation time. Interacting with your child in this way would be the same as calling him after school during your co-parent’s period of possession. 

Can you see your child even if you do not have a court order?

One of the tough positions for you to be in as a parent is to have the desire to see your child but not have a court order in place that provides you with a basic amount of visitation and possession time. If your child does not live with you then you would be relying on your co-parent to help you make any periods of visitation happen. No matter how honest and truthful your co-parent is, it should make you feel better when you can obtain a court order that spells out the specific periods of possession that you will have with your child. 

Filing a child custody case is the most straightforward way to obtain a court order that provides you with a possession schedule like an SPO. Many parents attempt to go off informal agreements with a co-parent until things reach a breaking point. Handshake agreements are fine until something happens where you are no longer able to trust the other person. Whether you encounter problems with managing child support, possession, or conservatorship rights it is hard to manage these issues without a court order in place.

The tough part about possession schedules that you work out with your co-parent informally is that you have no recourse if your co-parent goes back on their word. For example, you could agree with your co-parent that you would get the following weekend as a period of possession. You can pull up to her house at the agreed-upon time and be ready to pick up the kids just like you said you would. However, at the last minute, she could text you and say that the visitation was not going to happen. This could break your heart but there would be nothing that you could do about it. 

Since you all are doing all your visitation and possession coordination informally, she can do this for you. You are relying upon her word and trusting her when it comes to getting the possession time that you ask for. When she goes back on her word it’s not as if you can document what has happened and proceed to a courtroom to hold her accountable. However, this is exactly what you could do if you had a court order that provided you visitation and possession rights under an SPO. 

Sharing parental rights and duties with a co-parent is not easy. There are many considerations that you would need to consider before going to court. What are your goals for the case? What do you think is the most important of goals? How are you going to set out to accomplish your goals? Think about these things and then consider reaching out to the Law Office of Bryan Fagan. Our attorneys are in the courtrooms of Texas every day on behalf of clients just like you. We serve our community by providing top-notch legal representation daily. Your case is personal to you, and we strive to learn about each of our clients in a way that helps them reach their goals and do right by their families.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your family’s circumstances may be impacted by the filing of a divorce or child custody lawsuit. 

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