In the Final Decree of Divorce in most Texas family law cases, one of the parents is named the Primary Joint Managing Conservator (JMC) and the other parent is named the Secondary Joint Managing Conservator. The primary JMC has primary custody of the child and gets to determine the primary residence of the child, usually subject to a geographic restriction (for example, a specific city or county or a specific school district) that is agreed to by the parties or that is ordered by the Court.
The Final Decree of Divorce will include a Possession Order that says when each parent will have access to the children. The number one rule of child visitation is that visitation will be as agreed between the parties, but if the parties fail to agree then visitation shall be as outlined in the detailed possession order. I am providing a Standard Possession Order (SPO) here for your information.
The SPO may not necessarily apply to a child under three years old: Texas Family Code § 153.254. CHILD LESS THAN THREE YEARS OF AGE. (a) The court shall render an order appropriate under the circumstances for possession of a child less than three years of age. (b) The court shall render a prospective order to take effect on the child's third birthday, which presumptively will be the standard possession order.
Sometimes the SPO will state that visitation will begin at the time school is over for the day and sometimes the SPO will state that visitation will begin at some later time as late as 6 p.m. Additionally, sometimes weekend visitation will end when the child starts his/her school day on Monday morning instead of ending at 6 p.m. or some other time on Sunday evening. One party or the other will make these elections for alternative times to begin and/or end possession in accordance with Texas Family Code Section 153.317(a).
If you are not familiar with the SPO, you should read the entire SPO to get a feel for how it all fits together. Remember, divorced parents who have a good relationship with each other will communicate regularly to avoid misunderstandings about child possession and other child-related issues. In a mature and rational post-divorce parental relationship, there will frequently be a lot of give and take on child visitation based on the wishes and schedules of the parents and the needs of the child.
If the parties agree to use a different schedule and they both agree to the different schedule, no judge is going to care. I said it before, but it bears repeating: The number one rule of child visitation is that visitation will be as agreed between the parties, but if the parties fail to agree then visitation shall be as outlined in the detailed possession order.
(Please note that the SPO is but one example, although a very common example, of how visitation can work after a divorce. It is also pretty common for the parties to work out their own written visitation agreement. As long as it is as detailed as the SPO and covers all the issues and holidays covered in the SPO, most judges will approve it.)
In the following example of a Standard Possession Order, I have assumed that the Mother is the parent with primary child custody (the custodial parent) and the Father is the parent who is receiving visitation rights (the non-custodial parent). Obviously, that is not always the case. This is merely an example.
Please feel free to call me if you have questions about changing your particular possession order if you believe it is not working for you and your children...
A typical SPO follows:
"Possession and Access
1. Standard Possession Order The Court finds that the following provisions of this Standard Possession Order are intended to and do comply with the requirements of Texas Family Code sections 153.311 through 153.317. 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 explicitly provided in this Standard Possession Order, when Father resides 100 miles or less from the primary residence of the child, Father shall have the right to possession of the child as follows:
1. Weekends -
On weekends that 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.
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 explicitly provided in this Standard Possession Order, if a weekend period of possession by Father begins on a Friday that is a student holiday or teacher in-service day 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, or if the period ends on or is immediately followed by a Monday that is such a holiday, that weekend period of possession shall begin at 6:00 p.m. on the Thursday immediately preceding the Friday holiday, student holiday or teacher in-service day or end at 6:00 p.m. on that Monday holiday, student holiday or teacher in-service day, as applicable.
3. Thursdays - On Thursday of each week during the regular school term, beginning at 6:00 p.m. and ending at 8:00 p.m.
4. Spring Break in Even-Numbered Years - In even-numbered years, 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.
5. Extended Summer Possession by Father -
With Written Notice by April 1 - If Father gives Mother written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Father 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.
Without Written Notice by April 1 - If Father does not give Mother written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Father 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 Father, it is explicitly ORDERED that Mother shall have a superior right of possession of the child as follows:
1. Spring Break in Odd-Numbered Years - In odd-numbered years, 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.
2. Summer Weekend Possession by Mother - If Mother gives Father written notice by April 15 of a year, Mother 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 Father in that year, provided that Mother picks up the child from Father and returns the child to that same place and that the weekend so designated does not interfere with Father's Day Weekend.
3. Extended Summer Possession by Mother - If Mother gives Father written notice by April 15 of a year or gives Father fourteen days' written notice on or after April 16 of a year, Mother 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 Father shall not take place in that year, provided that the weekend so designated does not interfere with Father's period or periods of extended summer possession or with Father's Day Weekend.
(d) Parents Who Reside More Than 100 Miles Apart
Except as otherwise explicitly provided in this Standard Possession Order, when Father resides more than 100 miles from the residence of the child, Father shall have the right to possession of the child as follows:
1. Weekend - One weekend per month, of Father'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, provided that Father gives Mother 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 Weekend below.
2. Spring Break 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.
3. Extended Summer Possession by Father -
With Written Notice by April 1 - If Father gives Mother written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Father 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.
Without Written Notice by April 1 - If Father does not give Mother written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Father 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 Father, it is explicitly ORDERED that Mother shall have a superior right of possession of the child as follows:
1. Summer Weekend Possession by Mother - If Mother gives Father written notice by April 15 of a year, Mother 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 Father during Father's extended summer possession in that year, provided that if a period of possession by Father in that year exceeds thirty days, Mother may have possession of the child under the terms of this provision on any two nonconsecutive weekends during that period and provided that Mother picks up the child from Father and returns the child to that same place and that the weekend so designated does not interfere with Father's Day Weekend.
2. Extended Summer Possession by Mother - If Mother gives Father written notice by April 15 of a year, Mother 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, with each period of possession beginning and ending at 6:00 p.m. on each applicable day, during which Father shall not have possession of the child, provided that the period or periods so designated do not interfere with Father's period or periods of extended summer possession or with Father's Day Weekend.
(e) Holidays Unaffected by Distance
Notwithstanding the weekend and Thursday periods of possession of Father, Mother and Father shall have the right to possession of the child as follows:
1. Christmas Holidays in Even-Numbered Years - In even-numbered years, Father shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and Mother 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, Mother shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and Father 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, Father shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school 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, Mother shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school 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 the child on the child's birthday, that parent shall have possession of the child beginning at 2:00 p.m. and ending at 8:00 p.m. on that day, provided that that parent picks up the child from the other parent's residence and returns the child to that same place.
6. Father's Day Weekend - Father 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 6:00 p.m. on Father's Day, provided that if Father is not otherwise entitled under this Standard Possession Order to present possession of the child, he shall pick up the child from Mother's residence and return the child to that same place.
7. Mother's Day Weekend - Mother shall have the right to possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Mother's Day and ending at 6:00 p.m. on Mother's Day, provided that if Mother is not otherwise entitled under this Standard Possession Order to present possession of the child, she shall pick up the child from Father's residence and return the child to that same place.
(f) Undesignated Periods of Possession
Mother shall have the right of possession of the child at all other times not specifically designated in this Standard Possession Order for Father.
(g) General Terms and Conditions
Except as otherwise explicitly provided in this Standard Possession Order, the terms and conditions of possession of the child that apply regardless of the distance between the residence of a parent and the child are as follows:
1. Surrender of Child by Mother - Mother is ORDERED to surrender the child to Father at the beginning of each period of Father's possession at the residence of Mother.
2. Surrender of Child by Father - Father is ORDERED to surrender the child to Mother at the residence of Father at the end of each period of possession.
3. Surrender of Child by Father - Father is ORDERED to surrender the child to Mother, if the child is in Father's possession or subject to Father's control, at the beginning of each period of Mother's exclusive periods of possession, at the place designated in this Standard Possession Order.
4. Return of Child by Mother - Mother is ORDERED to return the child to Father, if Father is entitled to possession of the child, at the end of each of Mother's exclusive periods of possession, at the place designated in this Standard Possession Order.
5. Personal Effects - Each conservator is ORDERED to return with the child the personal effects that the child brought at the beginning of the period of possession.
6. Designation of Competent Adult - Each conservator may designate any competent adult to pick up and return the child, as applicable. IT IS ORDERED that a conservator or a designated competent adult be present when the child is picked up or returned.
7. Inability to Exercise Possession - Each conservator is ORDERED to give notice to the person in possession of the child on each occasion that the conservator will be unable to exercise that conservator's right of possession for any specified period.
8. Written Notice - Written notice shall be deemed to have been timely made if received or postmarked before or at the time that notice is due.
This concludes the Standard Possession Order.
2. Duration
The periods of possession ordered above apply to the child the subject of this suit while that child is under the age of eighteen years and not otherwise emancipated.
3. Noninterference with Possession
IT IS ORDERED that neither conservator shall take possession of the child during the other conservator's period of possession unless there is a prior written agreement signed by both conservators or in case of an emergency.
4. Termination of Orders
The provisions of this decree relating to conservatorship, possession, or access terminate on the remarriage of Mother to Father unless a non-parent or agency has been appointed conservator of the child under chapter 153 of the Texas Family Code.
5. Travel Inside and Outside the United States of America
Neither parent shall allow the child to leave the United States of America without giving thirty days advance written notice to the other parent. When traveling away from the child’s primary residence, both parents shall be informed by the other parent of the best way to stay in contact with the child by providing current cell telephone number(s) and travel information."
