Firefighters, police officers, and others with unusual work schedules are often faced with unique challenges during a divorce or custody dispute. With traditional work schedules, Texas courts apply the “Standard Possession Order” (SPO) which allows possession of the child(ren) on the first, third, and fifth weekends of each month. Texas refers to visitation as the right to “possession” of a child. It is distinct from access. The SPO usually works fine if both parents do not work weekends because it gives both parents quality time with the child(ren) when they are out of school. But when a parent routinely works on the weekends, the Standard Possession Order is unworkable. Despite this, many parents agree to the Standard Possession Order under the mistaken impression that “we must follow the Guidelines.” As shown below, that is not the case.
In all family law cases, parents are strongly encouraged to reach agreements on parenting plans whenever possible. When parents cannot agree, however, the court must decide the terms and conditions of the parenting plan.
As a matter of public policy, Texas encourages “frequent contact” between children and parents “for periods of possession that optimize the development of a close and continuing relationship between each parent and child.” Tex. Fam. Code 153.251(b). It is presumed that the Standard Possession Order provides the “minimum” amount of possession time for a parent named as a possessory conservator or joint managing conservator. 153.252(1). Obviously, this is difficult if not impossible to accomplish when parents are bound to a Standard Possession Order that is unworkable due to a schedule conflict. Firefighters, for example, typically work 24-hour shifts, many of which fall on or around their scheduled weekend possession periods. Applying the Standard Possession Order to a firefighter would require the parent to take possession (have visitation) at times when it is impossible to be physically present with their children.
The Family Code attempts to address this problem in Section 153.253 by requiring courts to “render an order as close as possible to the SPO if the work schedule or special circumstances of the conservator are unworkable.” Some might read this to mean simply that possession should occur on weekends when the parent is not at work. The problem with this response is that, depending on the work schedule, there might be several consecutive weekends in which the children do not see the parent. This would be contrary to the policy in favor of “frequent contact” of 153.251(b) mentioned above. Moreover, a child who frequently goes several weeks without seeing a parent will arguably have difficulty developing a “close and continuing relationship” with that parent. The language throughout these provisions seems to be focused more on the quantity of time rather than the days on which the possession occurs. Therefore, since the SPO is presumed to be the minimum quantity, the better argument is that possession should occur on roughly the same number of days each month.
There are many judges and family attorneys who would rather apply the SPO in all cases, claiming that they are simply “following the guidelines” in the Texas Family Code. The primary consideration in rendering possession and access orders is always the best interest of the children, not “following the guidelines.” 153.002. The best interest standard gives courts wide discretion in determining what schedule is best for parents and their children.
Alternative Possession Schedules
Once it is determined that the Standard Possession Order is unworkable, the next step is to work out an alternative possession or visitation schedule. One alternative is the “Alternating Weeks” schedule, where the children share time equally with each parent. Exchange of the children under this model takes place on the same and time day each week. An advantage of the week-on-week-off model is that children have the stability of knowing when and where they will be each week. It is also easier for parents to plan their lives because the schedule is fixed year-round. Another advantage is it allows the non-primary parent to become more directly involved in their child(ren)’s education during the week. One problem arises, however, when the parents live too far from each other because the parent living furthest from the school may have difficulty getting the children to school and back. It’s tough on the children because of long commutes. They might have to get up extra early just to be at school on time, and start their homework later because of afternoon traffic. For this reason, the Alternating Weeks model is generally discouraged unless the parties agree to live within a smaller geographical area than what is commonly applied.
Predesignated days: In this possession schedule, the non-primary parent will have a “customized” schedule that best accommodates his or her work schedule. The non-primary parent will select a certain number of days each month and deliver those selections to the other parent by a deadline. The designations can be made as far in advance as the designating parent’s schedule allows. As with the previous method, the parent will most likely have to select some dates that fall during the school week, thus giving that parent more direct involvement in the child(ren)’s school activities. The main drawback to this method is that the children will be exchanged on different days, making it less routine. Similarly, logistical problems in getting the children to and from school might also arise under this method if the parents live too far apart.
There are many other issues that must be worked through to make an alternative possession order enforceable, such as how holidays, birthdays, and summer vacations are allocated, and who will be responsible for transporting the children to the other parent. It is important that parents who find themselves in situation where the SPO is unrealistic find an experienced family law attorney to advise them, help negotiate, and represent them in court if an agreement is not made.