Brian K. Tackett

CustodyBy Brian K. Tackett

If you’re going through a divorce (or thinking about going through a divorce) and have children, getting custody of your children is probably an important topic for you. Before fighting for custody of your children, let’s discuss what custody is.

What Is Child Custody?

Custody is not a term specifically defined by law. However, there are two important aspects of custody that are addressed in the Texas Family Code:

  1. Conservatorship – the rights and responsibilities inherent to being a parent; and
  2. Possession – the time during which a parent has actual physical possession of a child.

In a divorce decree or child custody order, the rights and responsibilities of a parent are specifically listed. A comprehensive list of rights and responsibilities is included at the end of this article. The standard possession order is also included at the end of this article.

Conservatorship in the State of Texas

There are different types of conservatorship in Texas. There is sole managing conservatorship and joint managing conservatorship. Most people generally think of these as sole custody or joint custody. But joint custody does not necessarily mean equal possession. It means close to equal and responsibilities. Similarly, sole custody does not necessarily mean the other parent receives no visitation with the child. It means the other parent has limited rights and responsibilities, though visitation may be limited.

Sole managing conservatorship is exactly what you’re most likely thinking – you are the sole parent acting as a guardian. You have the right to decide where your children go to school, where they live, who they get medical treatment from, etc. When sole conservatorship is granted, the child has one primary residence.

When one parent has sole managing conservatorship, or sole custody, the other parent’s rights and responsibilities are limited. Usually, courts will grant sole conservatorship if one spouse has a history of family violence, a history of drug use or alcoholism, or if one parent has been absent from the child’s life.

If the courts grand sole managing conservatorship, they generally allow the other parent visitation rights to visit the child. Those visitation rights may be limited if there are concerns for the safety and welfare of the child.

Joint managing conservatorship is when the rights and responsibilities are granted to both parents. The right to make some decisions may, however, be awarded to only one parent. For example, one party will usually be given the exclusive right to determine the child’s primary residence and to receive child support from the other parent.

Possession in the State of Texas

The Texas Family Code creates a presumption that the standard possession order is in the best interest of the child. In other words, courts will assume that the standard possession order is appropriate unless the court decides that the standard possession order is inappropriate or unworkable under the circumstances.

Under the standard possession order, the child lives primarily with one parent and the other parent has a set possession schedule. When people refer to the standard possession order, they usually speak in terms of one parent having possession of the child “every other weekend”. But there is so much more the standard possession order – expanded standard possession, holiday provisions, weekday possession during the school year, long distance possession, extended summer possession, etc.

More and more courts are granting other types of possession schedules, usually equal or 50/50 possession. Equal possession schedules vary greatly depending on the circumstances of the parents and the child. Possession may alternate weekly. Or it may entail something more complicated like three days, two days, and two days (3/2/2). Because there is no equal possession schedule in the Texas Family Code, many lawyers have drafted a variety of schedules. It is important to hire an attorney who has experience with these types of schedules. The order needs to be both clear and enforceable.

Conservatorship – The Parental Rights and Responsibilities

  1. The right to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
  2. The right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
  3. The right of access to medical, dental, psychological, and educational records of the child;
  4. The right to consult with a physician, dentist, or psychologist of the child;
  5. The right to consult with school officials concerning the child’s welfare and educational status, including school activities;
  6. The right to attend school activities;
  7. The right to be designated on the child’s records as a person to be notified in case of an emergency;
  8. The right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
  9. The right to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.
  10. The duty to inform the other conservator of the child in a timely manner of significant information concerning the health, education, and welfare of the child; and
  11. The duty to inform the other conservator of the child if the conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter. IT IS ORDERED that this information shall be tendered in the form of a notice made as soon as practicable, but not later than the fortieth day after the date the conservator of the child begins to reside with the person or on the tenth day after the date the marriage occurs, as appropriate. IT IS ORDERED that the notice must include a description of the offense that is the basis of the person’s requirement to register as a sex offender or of the offense with which the person is charged. WARNING: A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE.
  12. The duty of care, control, protection, and reasonable discipline of the child;
  13. The duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
  14. The right to consent for the child to medical and dental care not involving an invasive procedure; and
  15. The right to direct the moral and religious training of the child.
  16. The right to designate the primary residence of the child;
  17. The right to consent to medical, dental, and surgical treatment involving invasive procedures;
  18. The right to consent to psychiatric and psychological treatment of the child;
  19. The right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
  20. The right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
  21. The right to consent to marriage and to enlistment in the armed forces of the United States;
  22. The right to determine which school the child will attend and the independent right to make all other decisions concerning the child’s education;
  23. Except as provided by section 264.0111 of the Texas Family Code, the right to the services and earnings of the child;
  24. Except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government; and
  25. The duty to manage the estate of the child to the extent the estate has been created by community property or the joint property of the parents.

Possession – The Standard Possession Order

Standard Possession Order

IT IS ORDERED that each conservator shall comply with all terms and conditions of this Standard Possession Order. IT IS ORDERED that this Standard Possession Order is effective immediately and applies to all periods of possession occurring on and after the date the Court signs this Standard Possession Order. IT IS, THEREFORE, ORDERED

(a) Definitions:

1.   In this Standard Possession Order “school” means the primary or secondary school in which the child is enrolled or, if the child is not enrolled in a primary or secondary school, the public school district in which the child primarily resides.

2.   In this Standard Possession Order “child” includes each child, whether one or more, who is a subject of this suit while that child is under the age of eighteen years and not otherwise emancipated.

(b) Mutual Agreement or Specified Terms for Possession

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.

(c) Parents Who Reside 100 Miles or Less Apart

Except as otherwise expressly provided in this Standard Possession Order, when PAT resides 100 miles or less from the primary residence of the child, PAT shall have the right to possession of the child as follows:

1.   Weekends – On weekends that occur during the regular school term, beginning at the time the child’s school is regularly dismissed, on the first, third, and fifth Friday of each month and ending at the time the child’s school resumes after the weekend.

On weekends that do not occur during the regular school term, beginning at 6:00 p.m., on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday.

2.  Weekend Possession Extended by a Holiday – Except as otherwise expressly provided in this Standard Possession Order, if a weekend period of possession by PAT begins on a student holiday or a teacher in-service day that falls on a Friday during the regular school term, as determined by the school in which the child is enrolled, or a federal, state, or local holiday that falls on a Friday during the summer months when school is not in session, that weekend period of possession shall begin at the time the child’s school is regularly dismissed on the Thursday immediately preceding the student holiday or teacher in-service day and 6:00 p.m. on the Thursday immediately preceding the federal, state, or local holiday during the summer months.

Except as otherwise expressly provided in this Standard Possession Order, if a weekend period of possession by PAT ends on or is immediately followed by a student holiday or a teacher in-service day that falls on a Monday during the regular school term, as determined by the school in which the child is enrolled, or a federal, state, or local holiday that falls on a Monday during the summer months when school is not in session, that weekend period of possession shall end at 6:00 p.m. on that Monday.

3.  Thursdays – On Thursday of each week during the regular school term, beginning at the time the child’s school is regularly dismissed and ending at the time the child’s school resumes on Friday.

4. Spring Vacation in Even-Numbered Years – In even-numbered years, beginning at the time the child’s school is dismissed for the school’s spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation.

5. Extended Summer Possession by PAT – With Written Notice by April 1 – If PAT gives TERRY written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, PAT shall have possession of the child for thirty days beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation in that year, to be exercised in no more than two separate periods of at least seven consecutive days each, with each period of possession beginning and ending at 6:00 p.m. on each applicable day, as specified in the written notice. These periods of possession shall begin and end at 6:00 p.m. on each applicable day.

Without Written Notice by April 1 – If PAT does not give TERRY written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, PAT shall have possession of the child for thirty consecutive days in that year beginning at 6:00 p.m. on July 1 and ending at 6:00 p.m. on July 31.

Notwithstanding the Thursday periods of possession during the regular school term and the weekend periods of possession ORDERED for PAT, it is expressly ORDERED that TERRY shall have a superior right of possession of the child as follows:

1. Spring Vacation in Odd-Numbered Years – In odd-numbered years, beginning at the time the child’s school is dismissed for the school’s spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation.

2. Summer Weekend Possession by TERRY – If TERRY gives PAT written notice by April 15 of a year, TERRY shall have possession of the child on any one weekend beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on the following Sunday during any one period of the extended summer possession by PAT in that year, provided that TERRY picks up the child from PAT and returns the child to that same place and that the weekend so designated does not interfere with Father’s Day possession.

3. Extended Summer Possession by TERRY – If TERRY gives PAT written notice by April 15 of a year or gives PAT fourteen days’ written notice on or after April 16 of a year, TERRY may designate one weekend beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation, during which an otherwise scheduled weekend period of possession by PAT shall not take place in that year, provided that the weekend so designated does not interfere with PAT’s period or periods of extended summer possession or with Father’s Day possession.

(d) Parents Who Reside More Than 100 Miles Apart

Except as otherwise expressly provided in this Standard Possession Order, when PAT resides more than 100 miles from the residence of the child, PAT shall have the right to possession of the child as follows:

1. Weekends – Unless PAT elects the alternative period of weekend possession described in the next paragraph, PAT shall have the right to possession of the child on weekends that occur during the regular school term, beginning at the time the child’s school is regularly dismissed, on the first, third, and fifth Friday of each month and ending at the time the child’s school resumes after the weekend, and on weekends that do not occur during the regular school term, beginning at 6:00 p.m. on the first, third and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday.

Alternate Weekend Possession – In lieu of the weekend possession described in the foregoing paragraph, PAT shall have the right to possession of the child not more than one weekend per month of PAT’s choice beginning at 6:00 p.m. on the day school recesses for the weekend and ending at 6:00 p.m. on the day before school resumes after the weekend. PAT may elect an option for this alternative period of weekend possession by giving written notice to TERRY within ninety days after the parties begin to reside more than 100 miles apart. If PAT makes this election, PAT shall give TERRY fourteen days’ written or telephonic notice preceding a designated weekend. The weekends chosen shall not conflict with the provisions regarding Christmas, Thanksgiving, the child’s birthday, and Mother’s Day possession below.

2. Weekend Possession Extended by a Holiday  Except as otherwise expressly provided in this Standard Possession Order, if a weekend period of possession by PAT begins on a student holiday or a teacher in-service day that falls on a Friday during the regular school term, as determined by the school in which the child is enrolled, or a federal, state, or local holiday during the summer months when school is not in session, that weekend period of possession shall begin at the time the child’s school is regularly dismissed on the Thursday immediately preceding the student holiday or teacher in-service day and 6:00 p.m. on the Thursday immediately preceding the federal, state, or local holiday during the summer months.

Except as otherwise expressly provided in this Standard Possession Order, if a weekend period of possession by PAT ends on or is immediately followed by a student holiday or a teacher in-service day that falls on a Monday during the regular school term, as determined by the school in which the child is enrolled, or a federal, state, or local holiday that falls on a Monday during the summer months when school is not in session, that weekend period of possession shall end at 6:00 p.m. on that Monday.

3. Spring Vacation in All Years – Every year, beginning at 6:00 p.m. on the day the child is dismissed from school for the school’s spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation.

4. Extended Summer Possession by PAT – With Written Notice by April 1 – If PAT gives TERRY written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, PAT shall have possession of the child for forty-two days beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation in that year, to be exercised in no more than two separate periods of at least seven consecutive days each, with each period of possession beginning and ending at 6:00 p.m. on each applicable day, as specified in the written notice. These periods of possession shall begin and end at 6:00 p.m. on each applicable day.

Without Written Notice by April 1 – If PAT does not give TERRY written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, PAT shall have possession of the child for forty-two consecutive days beginning at 6:00 p.m. on June 15 and ending at 6:00 p.m. on July 27 of that year.

Notwithstanding the weekend periods of possession ORDERED for PAT, it is expressly ORDERED that TERRY shall have a superior right of possession of the child as follows:

1. Summer Weekend Possession by TERRY – If TERRY gives PAT written notice by April 15 of a year, TERRY shall have possession of the child on any one weekend beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on the following Sunday during any one period of possession by PAT during PAT’s extended summer possession in that year, provided that if a period of possession by PAT in that year exceeds thirty days, TERRY may have possession of the child under the terms of this provision on any two nonconsecutive weekends during that period and provided that TERRY picks up the child from PAT and returns the child to that same place and that the weekend so designated does not interfere with Father’s Day possession.

2. Extended Summer Possession by TERRY – If TERRY gives PAT written notice by April 15 of a year, TERRY may designate twenty-one days beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation in that year, to be exercised in no more than two separate periods of at least seven consecutive days each, during which PAT shall not have possession of the child, provided that the period or periods so designated do not interfere with PAT’s period or periods of extended summer possession or with Father’s Day possession. These periods of possession shall begin and end at 6:00 p.m. on each applicable day.

(e) Holidays Unaffected by Distance

Notwithstanding the weekend and Thursday periods of possession of PAT, TERRY and PAT shall have the right to possession of the child as follows:

1. Christmas Holidays in Even-Numbered Years – In even-numbered years, PAT shall have the right to possession of the child beginning at the time the child’s school is dismissed for the Christmas school vacation and ending at noon on December 28, and TERRY shall have the right to possession of the child beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after that Christmas school vacation.

2. Christmas Holidays in Odd-Numbered Years – In odd-numbered years, TERRY shall have the right to possession of the child beginning at the time the child’s school is dismissed for the Christmas school vacation and ending at noon on December 28, and PAT shall have the right to possession of the child beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after that Christmas school vacation.

3. Thanksgiving in Odd-Numbered Years – In odd-numbered years, PAT shall have the right to possession of the child beginning at the time the child’s school is dismissed for the Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.

4. Thanksgiving in Even-Numbered Years – In even-numbered years, TERRY shall have the right to possession of the child beginning at the time the child’s school is dismissed for the Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.

5. Child’s Birthday – If a parent is not otherwise entitled under this Standard Possession Order to present possession of a child on the child’s birthday, that parent shall have possession of the child and the child’s minor siblings beginning at 6:00 p.m. and ending at 8:00 p.m. on that day, provided that that parent picks up the children from the other parent’s residence and returns the children to that same place.

6. Father’s Day – PAT shall have the right to possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Father’s Day and ending at 8:00 a.m. on the Monday after Father’s Day, provided that if PAT is not otherwise entitled under this Standard Possession Order to present possession of the child, he shall pick up the child from TERRY’s residence and return the child to that same place.

7. Mother’s Day – TERRY shall have the right to possession of the child each year, beginning at the time the child’s school is regularly dismissed on the Friday preceding Mother’s Day and ending at the time the child’s school resumes after Mother’s Day, provided that if TERRY is not otherwise entitled under this Standard Possession Order to present possession of the child, she shall pick up the child from PAT’s residence and return the child to that same place.

(f) Undesignated Periods of Possession

TERRY shall have the right of possession of the child at all other times not specifically designated in this Standard Possession Order for PAT.