Standard Possession Order – How it Works in Texas

Texas encourages parents to share parenting time with their children by agreement. When parents do not agree, they must follow the rules in the possession order. The Family Code provides a Standard Possession Order that many parents follow. It is not the only way to share parenting time, but parents should understand the Standard Possession Order before designing a custom order.

Generally

The Standard Possession Order, or "SPO" for short, provides a school year schedule, a summer schedule, and a holiday schedule. It provides a variation on these schedules depending on whether the parents live within 100 miles of each other or more than 100 miles of each other.1Tex. Family Code §§ 153.311-153.316. In 2009, the legislature created another variation on the Standard Possession Order by allowing parents to come closer to a 50:50 possession schedule by allowing alternate beginning and ending times for periods of possession that fall during the school year.2Tex. Family Code § 153.317. Some people refer to it as an Expanded Standard Possession Order, or "XSPO" for short.

Parents Can Agree

The most important part of every possession order is the reminder that parents "may have possession of the child at times mutually agreed to in advance" by the parents.3Tex. Family Code § 153.311. It's only when the parents cannot agree that they must follow the court's possession order. This is an important point to remember. One defining characteristic of an unhealthy co-parenting relationship is when one parent asks for some flexibility and the other parent says, "We have to follow the court's order." It's not true and, often, it's not healthy.4Contra: Some parents demand flexibility but won't reciprocate. In those situations, sometimes the healthiest thing to do is to "stick to the order" rather than become embittered.

Terminology

Under any variation of a Standard Possession Order, the children will spend more time at one parent's home than the other parent's. When reading the Texas Family Code, keep in mind that the parent who has the children most of the time is referred to as the managing conservator and the other parent is referred to as the possessory conservator. The Texas Family Code uses these terms even those most parents are appointed as Joint Managing Conservators of their children.

The Standard Possession Schedule

School Year Schedule

When parents live within 100 miles of each other

Standard Expanded
Weekends: Beginning at 6:00 p.m. on the first, third, and fifth Fridays of each month and ending at 6:00 p.m. on the following Sunday. Weekends: Beginning at the time the child's school is regularly dismissed on the first, third, and fifth Fridays of each month and ending at the time school resumes the following Monday.
Thursdays: Beginning at 6:00 p.m. every Thursday night and ending at 8:00 p.m. that same night. Thursdays: Beginning at the time the child's school is regularly dismissed every Thursday and ending at the time the child's school resumes the next day.
Spring Break: In even-numbered years beginning at 6:00 p.m. on the day the child's school is dismissed for Spring Break and ending at 6:00 p.m. on the Sunday before the child's school resumes after Spring Break. Spring Break: In even-numbered years beginning at the time the child's school is dismissed for Spring Break and ending at 6:00 p.m. on the Sunday before the child's school resumes after Spring Break. (No provision for Spring Break visitation ending when the child's school resumes after Spring Break.5Tex. Family Code § 153.317(a)(3).

When parents live more than 100 miles from each other

When parents live more than 100 miles from each other, the child is going to live at one parent's home and visit the other parent. The parent who has visitation rights can elect between two different schedules. One allows the parent to see the child on the same schedule as a Standard Possession Order (SPO) during the school year and the other lets the parent visit with the child any one weekend per month of that parent's choosing as long as that parent gives the other parent at least 14 days' advance notice.6Tex. Family Code § 153.313(1). In summary:

Election 1 Beginning at 6:00 p.m. on the first, third, and fifth Fridays of each month and ending at 6:00 p.m. on the following Sunday (no Thursday visits).
Election 2 Beginning at 6:00 p.m. on any one weekend per month so long as that parent gives the other parent at least 14 days' advance notice (no Thursday visits).

No matter which election the possessory conservatory makes, the possessory conservator will have the right to possession of the child during every Spring Break.7Tex. Family Code § 153.313(2).

Summer Schedule

Remember that the provisions in the Family Code for expanding the Standard Possession Order do not apply during the summer.

When parents live within 100 miles of each other

Whether the school year schedule is standard or expanded, weekends during the summer run from 6:00 p.m. on Friday until 6:00 p.m. the following Sunday. That means that once school is dismissed for the summer vacation, the possessory conservator's weekend visits begin at 6:00 p.m. on the first, third, and fifth Fridays of each month and end at 6:00 p.m. on the following Sunday. The parents are permitted to disrupt this weekend schedule so that each parent gets a long visit with the children each summer.

Possessory Conservator The possessory conservator gets 30 days of extended possession time each summer. If the possessory conservator gives the other parent notice by April 1, the possessory conservator can have any 30 days he or she chooses. If the possessory conservator fails to give notice by April 1, then the possessory conservator gets to have possession of the children beginning at 6:00 p.m. on July 1 and ending at 6:00 p.m. on July 31.
Managing Conservator The managing conservator may interrupt the possessory conservator's 30 days of possession by taking any one weekend (6:00 p.m. Friday until 6:00 p.m. on Sunday) during the possessory conservator's 30 days of possession. There are two conditions placed on this right to interrupt the possessory conservator's extended possession time: First, the managing conservator must give notice to the possessory conservator by April 15 of which weekend he or she will be taking or at least 14 days' written notice after April 15. Second, the managing conservator must pick the child up from wherever the child is and return the child to the possessory conservator, wherever that may be.
The managing conservator may also choose one weekend during the summer, outside of the possessory conservator's 30 days, during which the possessory conservator will not have possession of the child. That gives the managing conservator 21 days of possession of the child during the summer.

Here is an illustration of what the summer schedule might be if the parents simply exercised the weekend periods of possession during the summer and neither exercised their extended summer possession time:

If both parents make all of their available elections, it might look like this:

When parents live more than 100 miles from each other

When both parents live more than 100 miles from each other, the weekend possession schedule does not change during the summer. The possessory conservator continues to have the right to exercise possession of the child on the first, third, and fifth Fridays of the month OR one weekend per month following 14 days' advance notice to the managing conservator, depending on the election the possessory conservator made under Section 153.313(1) of the Texas Family Code. However, the summer schedule changes quite a bit.

Possessory Conservator The possessory conservator gets 42 days of extended possession time each summer. If the possessory conservator gives the other parent notice by April 1, the possessory conservator can have any 42 days he or she chooses. If the possessory conservator fails to give notice by April 1, then the possessory conservator gets to have possession of the children beginning at 6:00 p.m. on June 15 and ending at 6:00 p.m. on July 27. This 42 days can be broken into two separate periods of possession of at least 7 days each.
Managing Conservator The managing conservator may interrupt the possessory conservator's 42 days of possession by taking any one weekend (6:00 p.m. Friday until 6:00 p.m. on Sunday) during one of the possessory conservator's periods of extended summer possession. If the possessory conservator exercises summer possession such that he or she has at least one period of extended possession that is 30 days or more, then the managing conservator can interrupt that long period by taking two non-consecutive weekends. There are two conditions placed on this right to interrupt the possessory conservator's extended possession time: First, the managing conservator must give notice to the possessory conservator by April 15 of which weekend(s) he or she will be taking or at least 14 days' written notice after April 15. Second, the managing conservator must pick the child up from wherever the child is and return the child to the possessory conservator, wherever that may be.
The managing conservator may also choose one weekend during the summer, outside of the possessory conservator's 30 days, during which the possessory conservator will not have possession of the child. That gives the managing conservator 21 days of possession of the child during the summer.

Therefore, under Section 153.313(4) of the Texas Family Code, if the possessory conservator wants to maximize summer possession, he or she should designate two 21-days periods of possession by April 1 of each year. By doing that, the possessory conservator limits the managing conservator's right to interrupt summer possession.

Here is an illustration of what the summer schedule might be if the parents simply exercised the weekend periods of possession during the summer and neither exercised their extended summer possession time:

If both parents make all of their available elections, it might look like this:

Holidays and Birthdays

Under the Standard Possession Order, the holiday schedule is the same no matter how far apart the parents live from each other. (Note that Spring Break is not treated as a holiday under the Standard Possession Order as is allocated differently depending on how far apart the parents live from each other.)

The holidays are defined as:

  1. Christmas: The child's Christmas school vacation is divided into two pieces. The first part of the Christmas school vacation begins at 6:00 p.m. on the day the child is released from school for the Christmas school vacation and ends at noon on December 28. The second part of the Christmas school vacation begins at noon on December 28 and ends at 6:00 p.m. on the day before the child's school resumes after the Christmas break.
  2. Thanksgiving: The child's Thanksgiving school vacation begins at the time the child's school is dismissed just before Thanksgiving Day and ends at 6:00 p.m. on the Sunday after Thanksgiving. Depending on the school district, that can be a long break from the Friday before Thanksgiving through the Sunday after Thanksgiving. Other districts may hold school on the Mon, Tues, and even the Wed before Thanksgiving with the result being that the Thanksgiving break is much shorter.
  3. Mother's Day: The child's mother has the right to possession of the child from 6:00 p.m. on the Friday before Mother's Day until 6:00 p.m. on Mother's Day even if it would not normally be her weekend. If it would not normally be her weekend, she must pick the child up from the other parent on Friday and return the child there on Sunday.
  4. Father's Day: The child's father has the right to possession of the child from 6:00 p.m. on the Friday before Father's Day until 6:00 p.m. on Father's Day even if it would not normally be his weekend. If it would not normally be his weekend, he must pick the child up from the other parent on Friday and return the child there on Sunday.
  5. Child's Birthday: The parent who would not otherwise be entitled to possession of the child on the child's birthday has the right to possession of the child and the child's minor siblings from 6:00 p.m. to 8:00 p.m. on the child's birthday.

The Christmas and Thanksgiving holidays change from year to year. In one year, one parent will have the child during Thanksgiving and the second part of Christmas while the other parent gets the first part of Christmas. In the next year, those periods of possession are swapped.

Holiday Managing Conservator Possessory Conservator
Thanksgiving Even-Numbered Years Odd-Numbered Years
Christmas - First Part Odd-Numbered Years Even-Numbered Years
Christmas - Second Part Even-Numbered Years Odd-Numbered Years

Final Allocation of Time Between Parents

A parent who lives more than 100 miles from a child or who is not awarded an expanded standard possession order will receive significantly less than 50% of the child's time. A parent who lives within 100 miles of the child and who is awarded an expended standard possession schedule will receive nearly 50% of the child's time. Depending on the school's holiday calendar, teacher in-service days, weekends extended by holidays and whether it is an even- or odd-numbered year, the possessory conservator will get 42% - 49% of the child's time, which works out to a difference of 2.5 days per month or less.

Effect on Child Support

Some parents seek a 50:50 schedule because they believe it works best for their children or their own work schedule. Some seek 50:50 because they don't want to pay child support. There is no provision in any part of the Texas Family Code that says that parents who have a 50:50 possession schedule do not pay or receive child support.

The Highly Flawed "Offset Formula"

There are, however, too many attorneys and judges who think that calculating child support based on some "offset" formula is justified under a 50:50 schedule. It is not. There is no mathematical justification for lowering a child's financial resources by 50% when the possession schedule only varies 1%-8%. If you find yourself on either side of this disagreement, you need to hire an experienced and persuasive family law attorney who can press these points effectively on your behalf.

Final Notes

The Standard Possession Order works well for a lot of families, particularly those who can co-parent constructively when the parents no longer live together. Even so, the Texas Family Code is clear that parents are not limited to the Standard Possession Order.8Tex. Family Code § 153.255. If another arrangement would work better for everyone involved, with greater consideration being given to the impact of the schedule on the children, the parents can agree to another schedule or ask the judge for a different schedule.9Tex. Family Code §§ 153.253, 153.256. If the parents cannot agree on a different schedule, it can be legally complicated to persuade a judge to deviate from the Standard Possession Schedule because of the presumptions contained in the Texas Family Code.10Tex. Family Code § 153.252.

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