April 15th Is an Important Deadline for Primary Conservators

Not only is April 15th an important deadline for every American when it comes to filing their annual taxes, in Texas April 15th is a deadline for primary conservators to designate their summer weekend possession time with the children.

In a Texas Standard Possession Order, the non-primary parent is awarded the 1st, 3rd, and 5th weekends of the summer months as well as 30 days extended summer possession. The primary parent in turn gets to pick one weekend, which occurs during the non-primary parent’s 30 day extended summer possession, to have the children. This election must be made in writing by April 15th or the primary parent loses the ability to have a weekend period of possession during the other parent’s 30 day extended summer possession.

Additionally, the primary parent gets to pick one of the 1st, 3rd, and 5th weekends during the summer months which would have been the non-primary parent’s weekend, to have possession of the children. The primary parent must elect in writing by April 15th or no later than fourteen days prior to the elected 1st, 3rd, and 5th summer weekend. This weekend period of possession cannot occur during the 30 day extended summer possession of the non-primary parent.

 

 

April 1st Possession Designation is Upon Us

An important deadline contained in Texas divorce decrees in which to designate your intended 30 days of extended summer possession is April 1st.  The Texas Standard Possession Order awards a non-primary parent the 1st, 3rd, and 5th weekends of the summer months as well as 30 days extended summer possession in the summer.  The primary parent in turn gets to pick one of the 1st, 3rd, and 5th weekends, which would have been the non-primary parent’s weekend, to have possession of the children as well as one weekend during the non-primary parent’s 30 days of extended summer possession.

 The Texas Standard Possession Order states that April 1st is the deadline for the non-primary parent to give written notice to the primary parent of their intended dates for their 30 days of extended summer possession.  These 30 days can only be exercised in two periods of possession and each period of possession must be at least seven consecutive days.  Additionally, a parent’s extended summer possession can begin once school is dismissed and must end at least seven days before school resumes at the end of the summer. 


What happens if you miss the April 1st deadline? Should you not designate any extended summer possession dates by April 1st, you will be entitled to July 1 – 31st that summer.

A question that is frequently asked is “can I use a weekend of summer possession in addition to my extended summer possession to make my time with the children 32 days?”  The answer is yes, you can.  However, keep in mind that the primary parent has until April 15th each year to designate a weekend period of possession that will occur during your regular 1st, 3rd, and 5th weekend as well as a weekend during your extended summer possession.

 

Could Your Possession Schedule Be Hurting Your Children?

Parents in Texas, absent family violence or child abuse, harm or neglect, are entitled to at a minimum a possession schedule with their children called the Standard Possession Schedule. Each state has its own version of a “Standard Possession Order.”

The Texas Standard Possession Schedule allows the non-primary parent to have possession of the child at a minimum on the 1st, 3rd, and 5th weekends of the month beginning at 6 pm on Fridays and ending at 6pm on Sundays, Thursdays during the school year from 6 pm – 8 pm, and 30 days in the summer. Additionally, parents alternate having possession of the child during Spring Break, Thanksgiving, Christmas, and New Year holidays. More and more often, parents who live close in proximity are agreeing to 50/50 possession schedules which entitle each parent to possession of the child ½ of the time.

Recently, Yahoo profiled the possession schedule of the infant twins of David Tutera and his estranged partner, Ryan Jurica. The twins were delivered via surrogate in July, 2013. One of the infant twins is the biological child of David Tutera and the other infant twin is the biological child of Ryan Jurica. Recently, Mr. Tutera and Mr. Jurica announced that they will “split custody” of the infant twins. Split custody means that siblings are separated and one child goes to one parent and the other child goes to the other parent. In this situation, Mr. Tutera will have custody of his biological twin child and Mr. Jurica will have custody of his biological twin child. Mr. Tutera has defended this decision and states he intends to have his child know her twin. However, the current possession schedule does not provide for the twins to be raised together in the same home.

Most experts agree that splitting up siblings, whether they are half or full siblings, is not in a child’s best interest. The sibling relationship is an important one. Children need their siblings to connect with and grow together. The bottom line is the younger the children, the less likely a Court in Texas will allow the children to be split apart. Therefore, it is important to research different possession schedules and what experts recommend when deciding what schedule is best for children and their relationships with the family unit as a whole.

Breaking Down the Sanders Divorce: Parenting Time and Possession Schedules in Texas

As discussed in my blog yesterday, on March 12, 2013, a Texas jury in the Deion and Pilar Sanders divorce ruled that Deion Sanders would have Sole Managing Conservatorship of the couple’s two boys and that Deion and Pilar would be joint managing conservators of the couple’s daughter with Deion determining the daughter’s primary residence.  Last week, the Judge ordered that Deion Sanders was to no longer pay any child support to Pilar.  He also ruled that Pilar is to have a Standard Possession Order with all three children.

What exactly is a Standard Possession Order?  In Texas, there is a presumption, just like the presumption that two parents are to be Joint Managing Conservators, that it is in a child’s best interest that a parent have at least a Standard Possession Order with the child.  This presumption is rebuttable.  If you are requesting a parent have less than a Standard Possession Order, you must rebut the presumption by showing some form of child abuse, harm, or neglect or domestic violence as well as demonstrating that it is in the child’s best interest for the parent to have less possession and access than a Standard Possession Order.

 The Standard Possession Order is as follows:

Weekends – On the 1st, 3rd, and 5th weekend of the month beginning Friday at 6:00 p.m. and ending Sunday at 6:00 p.m.

Thursdays during the school year – Beginning at 6:00 p.m. and ending at 8:00 p.m.

Thirty Days in the summer – If a parent makes a specific designation by April 1st of each year, a parent may designate thirty days which shall be operated in no more than two periods with each period of possession being no less than seven days.
If a parent does not make a specific designation for their thirty days in the summer by April 1st, then the default possession is July 1st – 31st. 
The other parent then gets to pick one weekend of possession to occur during the parent’s thirty days in the summer as well as one weekend of possession during the parent’s regular 1st, 3rd, and 5th weekends of the month.

Spring Break in even years is awarded to the parent under a Standard Possession Order.

Holidays are divided between the parents based upon even and odd years. 
Christmas Holidays 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 Christmas school vacation and ending at noon on December 28th
Christmas Holidays in Even-Numbered Years – In odd-numbered years, beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after that Christmas school vacation.
Thanksgiving in Odd-Numbered Years - 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.

Depending on which parent is under a Standard Possession Order, that parent is entitled to either Mother’s Day or Father’s Day weekend (depending on their sex) beginning at 6:00 p.m. on the Friday before the Mother’s/Father’s Day and ending at 6:00 p.m. on Mother’s/Father’s Day.

A parent under a Standard Possession Order may make an election to have an Expanded Standard Possession Order if the Judge finds that an Expanded Standard Possession Order is in a child’s best interest.  An Expanded Standard Possession Order means that a parent’s possession can begin at the time is school is dismissed and end at 6:00 p.m. on the respective day or it can begin at 6:00 p.m. and end at the time school resumes the day after the day of possession under a Standard Possession Order.  For example: on the 1st, 3rd, and 5th weekend of the month, a parent can elect (with the Judge’s permission) to have possession beginning at the time school is dismissed on Friday and ending at 6:00 p.m. on Sunday or beginning at 6:00 p.m. on Friday and ending at the time school resumes on Monday. 

What is significant with the Judge’s ruling regarding Pilar Sanders possession schedule is that the Judge must have found that it was not in the children’s best interest for Pilar to have an Expanded Standard Possession Order with the children and instead only awarded her a Standard Possession Order. 

Stay tuned for my next blog where I will discuss pre-nuptial agreements in Texas and the role Deion and Pilar Sanders’ pre-nuptial agreement plays in their divorce.

 

FAQ: Does the primary conservator have the ability to disagree with the dates that I have designated for my periods of summer possession and require that I select different dates?

As a reminder, if you are the non-primary parent/possessory conservator, then you must submit, in writing, the dates that you wish to have extended summer possession with the child by April 1 every year.  Failure to submit your desired dates on or before April 1 of each year may result in you having no choice regarding your extended summer possession in a given year.  

Under a Texas Standard Possession Schedule, the non-primary/possessory conservator may select 30 days for purposes of his/her summer possession, which can be split up into a maximum of two periods of at least 7 days each.  These dates also cannot interfere with the other parent’s Mother’s Day or Father’s Day weekend periods of possession.  Keep in mind that under a Texas Standard Possession Schedule, the non-primary conservator will continue to exercise their 1st, 3rd, and 5th weekends of the month in addition to the 30 days of extended summer possession during the summer.

If you are the custodial parent/primary conservator, then you must submit, in writing, the dates that you wish to have extended summer possession with the child by April 15 every year.  Under a Texas Standard Possession Schedule, the primary conservator is entitled to select (1) weekend from the dates that the other parent has designated as his or her 30 days of extended summer possession (submitted by April 1).  Said weekend possession shall begin at 6:00 p.m. on Friday and end at 6:00 p.m. on the following Sunday during the 30 days of extended summer possession selected by the non-primary parent.  Additionally, the primary conservator gets to select (1) weekend that would otherwise be the other parents regular weekend possession during the summer (1st, 3rd, or 5th weekend) by April 15 of each year and/or by providing 14 days’ written notice to the other parent.

The purpose of the April 1 and April 15 deadlines is to provide the non-primary parent the right each year to select his/her dates for their extended summer possession before the primary conservator selects their weekend from these dates. 

Therefore, the primary conservator cannot require the non-primary conservator to select different dates for their extended summer possession (unless they have selected Mother’s Day/Father’s Day weekend).  However, the primary conservator can select 1 weekend during this 30-day period to exercise his or her extended summer possession as discussed above in paragraph 3.  Therefore, regardless of whether you are the primary or non-primary conservator, you should always wait until after the April 1 and April 15 designation deadlines to plan those summer vacations.

 

Use of Electronic Communication to Supplement Periods of Possession with Children:

Although many families reside within close proximity to one another, there are a lot of families where the non-primary conservator lives a great distance from the primary residence of their children.  This distance can make it more difficult for the parent to consistently exercise their possession with the children.  It can also make it more difficult for that parent to maintain a meaningful relationship with their children.  Advancements in technology can make it easier to maintain consistent communication with children, regardless of the distance between the parent and child.  

Electronic communication provisions in child custody orders allow parents the opportunity to see and speak to their children more frequently.  Many Texas courts are willing to order electronic communication between the non-primary parent and the children to supplement a parent’s periods of possession of and access to children.  This electronic communication can be in the form of telephone access, email access, Skype or Face Time.  As technology continues to develop and improve it becomes easier for courts to accommodate a parent’s request for additional access with their children.  Most Texas courts are unwilling to order electronic communication on a daily basis, but most will consistently order every other day or at least 3 times per week.   Generally, electronic communication is to occur for up to 30 minutes on each day that it is ordered by the Court.

 

Designating your Summer Possession in Texas:

The Texas standard possession order for summer visitation requires both parents to take action by either April 1st or April 15th of each year if they wish to select dates for summer visitation with their child.   

If you are the non-custodial parent/possessory conservator, then you must submit, in writing, the dates that you wish to have extended summer possession with the child by April 1, 2013.  Failure to submit your desired dates on or before April 1, 2013 may result in you having no choice regarding your extended summer possession this year.   Most orders state that if the possessory conservator fails to designate his or her extended summer possession on or before April 1, then they shall exercise their extended summer possession for that year beginning on July 1 and ending on July 31. 

If you are the custodial parent/primary conservator, then you must submit, in writing, the dates that you wish to have extended summer possession with the child by April 15, 2013.  Most orders state that if the primary conservator fails to designate his or her extended summer possession on or before April 15, then they shall elect their extended summer possession for that year by providing the other parent conservator with fourteen days' written notice of the dates that they have selected. 

Key Points to Remember when Selecting Dates for Summer Possession: 

  • If you are the mother do not select dates that interfere with Father’s Day Weekend, which is the weekend of June 14, 2013;
  • If you are the father do not select dates that interfere with Mother’s Day Weekend, whish is the weekend of May 10, 2013;
  • Please remember that all summer possession must be completed within a specified time period.  The time period for exercising summer possession begins on the day after the child's school is dismissed for the summer vacation and ends no later than seven days before school resumes at the end of the summer vacation.  Be sure to look at your child’s school calendar to ensure that you comply with this requirement.
  • If you are the possessory conservator and you reside within 100 miles or less from the primary residence of the child, then you can select 30 days for extended summer possession.  You do not have to select 30 days in a row.  You can break-up the days into no more than two separate periods of at least seven consecutive days each.
  • If you are the possessory conservator and you reside over 100 miles apart from the primary residence of the child, then you can select 42 days for extended summer possession.  You do not have to select 42 days in a row.  You can break up the days into no more than two separate periods of at least seven consecutive days each.

 

Modification of Custody in Texas

Recently, I was able to help a client change the custody arrangements he had in his divorce decree to a new custody arrangement that gave him much more time with his daughter.  Not only were we able to get the client more time with his daughter than he had in his divorce decree, we were also able to decrease the client’s child support based upon the greater amount of time he was spending with his daughter.   

In order to modify any custody arrangement in Texas, the person requesting the modification must show that there has been a material and substantial change in circumstances.  The circumstances can be that of either parent or even the child.   The most common circumstances that the Court sees are changes in employment that result in either greater or lesser pay than at the time of the last order.  People also relocate which can result in more or less time with the child then the circumstances at the time of the prior order.  When it comes to evidence that the Court may consider, the Court may only consider evidence from the date of the last order to present.  Anything that happened prior to or during a divorce for instance, is not admissible evidence in a modification in Texas.  

At the conclusion of the client’s modification action, I received a very kind note from the client regarding the changes in his life and the life of his daughter.   

“Katie,
I wanted to thank you for all your assistance in getting this modification finalized.  I know it was not an easy road, but it worked out.  I think you are a very good attorney and wish you all the best.  The girls are much happier now that they see me on a regular basis.”

Thanks,

J.A.”

 

Spring Break 2013: In Texas, the standard possession order awards the primary parent possession of the child(ren) for spring break in odd-numbered years.

Pull out those school calendars and determine when spring break occurs for your child(ren) this year.  Please keep in mind when deciding on your spring break destination that if there is an active divorce or child custody case pending involving your child(ren), then your spring break destination may be limited to within the state of Texas.  Many Texas courts have standing orders that prohibit either parent from removing the child(ren) from the state of Texas during the pendency of a divorce or custody case.  Therefore, you must get court approval or a written agreement with the other parent prior to taking a spring break trip outside of the "Lone Star State."

The Texas Standard Possession Order and Weekend Possession extended by a Holiday:

In Texas, the standard possession order provides special provisions for extending possession on weekends that either begin with or end with a student holiday or teacher in-service day.  In 2013, Martin Luther King, Jr. holiday is one of the occasions when the non-primary parent gets a little extra time with the child(ren) during their weekend possession.  Specifically, parents that have a Texas Standard Possession Order should be reminded that Martin Luther King, Jr. holiday falls on the Monday following the 3rd weekend of possession in 2013.  Therefore, instead of the period of possession ending at either 6:00 p.m. on Sunday and/or at the time that school resumes on Monday (depending upon whether you have regular standard possession or expanded standard possession) the weekend period of possession does not end until 6:00 p.m. on Monday, January 21, 2013.

 

FAQ: How to I determine if it is my weekend of the month?

Many parents in Texas have possession of and access to their children pursuant to the Standard Possession Schedule contained within the Texas Family Code. The parent that has standard possession is entitled to possession of a child during the 1st, 3rd, and 5th weekends of each month throughout the year. The 1st, 3rd, and 5th weekends of the month are not the same as every other weekend. It can be confusing in some cases to determine if a weekend is the 1st, 3rd, or 5th weekend of the month. The key to determining which weekend of the month it is for purposes of your possession, you should look at what day of the month that Friday falls on. For instance, if Friday is the 1st day of any month, then that would be the first weekend of the month. However, if Saturday is the first day of the month, then that weekend would not be the first weekend of the month.

Who Should Be Present During Exchanges of the Children

 

When going through a divorce in Dallas, Texas, exchanging the children for possession times between parents can be a stressful situation.   When children are enrolled in school, many parents choose to exchange the children at the beginning or ending of the school day. The exchange at school limits or eliminates the parents’ interaction with each other. This can be a wise choice during a divorce in Texas when parents may not necessarily be getting along. 

When a child is younger than school age, it makes exchanges of the young child more challenging in that it requires parent interaction at the time of the exchanges. Recently in the news, Halle Berry, her boyfriend, actor Olivier Martinez, and the father of Ms. Berry’s daughter, model Gabriel Aubry, were involved in an altercation during the exchange of the child. Both Olivier Martinez and Gabriel Aubry allege that the other committed assault. Mr. Aubry was arrested at the time of the exchange of the child. Mr. Aubry has also obtained a restraining order against Mr. Martinez. How this will all play out in the media and the legal system is yet to be seen.

It is wise when exchanging children to not have significant others, family members or any person the other parent could interpret as an adversary present at the time of the exchange. The presence of additional people during an exchange regardless of the intent can heighten emotions and create possible situations that can have lasting negative repercussions for you as well as your child.

 

Holidays and the Texas Standard Possession Schedule:

It is approaching the holiday season again. Be sure to pull out your Final Decree of Divorce, Order in Suit Affecting Parent-Child Relationship or other court order to determine when you have possession of your children for Christmas in 2012.

It is important to obtain a copy of your child’s/children’s school calendar, so that you can determine when they will be released from school for the holidays. If you have a child that is not in school, then obtain a copy of the calendar for the school district that they would be attending if they were in school, and follow that calendar to determine when your holiday periods of possession begin and end.

CHRISTMAS:

Generally, the non-primary conservator will have possession of the child/children for the front-half of the Christmas holiday in even-numbered years. The front half of Christmas begins on the day that the children are dismissed from school for Christmas holiday and ends at noon on December 28.  Typically, the primary conservator has possession of the children for the back-half of Christmas in even-numbered years. The back-half of Christmas begins at noon on December 28 and ends at the time that school resumes after the Christmas holiday.  This period of possession begins on the date that the children are release from school for Christmas break.

Pay Special Attention When Structuring Your Thanksgiving Periods of Possession in Texas

 

If you have children and are going through a divorce in Texas, it is important to pay close attention to the possession schedule you agree to in your final decree. It is important to remember that holiday periods of possession as it is stated in your Texas divorce decree supersede your regular weekly periods of possession.   When structuring your possession schedule to best accommodate you and your children, it is best to refer to your child’s school district and what days the school district considers to be a holiday.

Thanksgiving periods of possession in Texas can be tricky. The Texas Family Code alternates Thanksgiving periods of possession between parents on an every other year basis. The Thanksgiving holiday begins the day the child is dismissed from school and ends either the night before school resumes or the day school resumes after the Thanksgiving holiday.

Most school districts in Texas now release children for the Thanksgiving holiday on the Friday preceding Thanksgiving as opposed to the Tuesday or Wednesday preceding Thanksgiving. This difference can affect the amount of time you have with your children in a given year. For instance, if you are entitled to possession the weekend preceding Thanksgiving, your spouse is entitled to the Thanksgiving holiday, and your child is dismissed from school on the Friday before Thanksgiving, your spouse’s Thanksgiving period of possession will supersede your weekend before the Thanksgiving holiday. This occurs because the weekend preceding the Thanksgiving holiday is considered part of the Thanksgiving holiday due to your child being dismissed from school the Friday before Thanksgiving.

If your child is dismissed from school on the Friday before Thanksgiving, you may want to structure your Thanksgiving holiday periods of possession for you and your spouse to begin the Monday preceding Thanksgiving so as to not miss a regular weekend period of possession.

 

Frequently Asked Question: What do I do if I am supposed to have possession of my child, but the other parent has stated that they are not going to surrender the child?

 

There are several things that you should do if you have a valid Texas court order that awards you present possession of your child and the other parent is stating that they are going to deny you possession of the child. First, you must go to the place designated in the order at the time designated in the order and attempt to obtain possession of the child. Do not just take the other parents word that they are going to deny you possession. You must attempt to obtain possession of the child. 

If you show up at the time and place designated in the order and you are denied possession of the child, it would be helpful to document your attempt to obtain possession of your child. This can be done by using a video recorder to record the date, time, and location of where you are attempting to obtain possession of your child. Most smart phones and other cellular phones have this recording capability. Also, you could contact the local police department to see if they will assist you with preparing a report to document your attempt to obtain possession of your child. 

If a parent denies the other parent possession of a child and there is a valid court order, then a Texas court can make a finding that the parent denying possession is in contempt.

Next week I will discuss the possible consequences of a finding of contempt and other remedies available to the parent that was denied possession of the child.

 

Halloween Is Here

 

The Standard Possession Order does not include a specific provision for the Halloween holiday.  This can make trick-or-treating extra spooky for divorced parents who both want to spend time with their kids on this fun holiday. 

If Halloween doesn't fall during your possession this year, you can still share in the holiday fun. Try Skype or doing Facetime with your child in costume, lunch at your child’s school if they dress up for Halloween, or Halloween balloon or cookie delivery.You can also celebrating before Halloween by making a trip to the pumpkin patch, carving jack-o-lanterns, or watching age-appropriate scary movies.

If Halloween does fall during your time, make sure to send pictures of your child in costume to your ex.  Hopefully they will repay the gesture on a year when they have Halloween or another important holiday or event.  These small gestures can go a long way toward fostering effective co-parenting and encouraging a healthy relationship with your child’s other parent.

For people who have not yet finalized their divorce, you can include provisions in your decree for special holidays that are not addressed by the Standard Possession Order, like Halloween, Easter and Fourth of July.

No matter what your relationship is like with your ex or what your decree says about Halloween, keep in mind that Halloween should be a fun holiday for your child and know that you, whether it is your day for possession or not, should have the ability to make that happen.  Happy trick-or-treating everyone!!

 

Holidays and the Texas Standard Possession Schedule

 

It is approaching the holiday season again. Be sure to pull out your Final Decree of Divorce, Order in Suit Affecting Parent-Child Relationship or other court order to determine when you have possession of your children for Thanksgiving and Christmas in 2012.

It is important to obtain a copy of your child’s/children’s school calendar, so that you can determine when they will be released from school for the holidays. If you have a child that is not in school, then obtain a copy of the calendar for the school district that they would be attending if they were in school, and follow that calendar to determine when your holiday periods of possession begin and end.

THANKSGIVING:

Generally, the primary conservator will have possession of the child/children for Thanksgiving in even-numbered years. This period of possession begins on the date that the children are released from school for Thanksgiving break.

CHRISTMAS:

Generally, the non-primary conservator will have possession of the child/children for the front-half of the Christmas holiday in even-numbered years. This period of possession begins on the date that the children are release from school for Christmas break.

 

The Myth of "Equal Time"

 

It is a common misconception that both parents are entitled to "equal time" with their children in a divorce. It sounds fair - two parents sharing time equally. But what sounds "fair" to the parents in theory is not always what works best for the children in practice.

The law in Texas is focused on the best interest of the child - not the parent. While it might sound like a good idea to have a child spend "equal" time with the parents, the Texas Family Code presumes that the Standard Possession Order -- as opposed to equal time – is in the child’s best interest. If either parent wants to deviate from the Standard Possession Order, even if it is just to ask for equal time, that parent must establish (1) that the Standard Possession Order is not in the child’s best interest and (2) that the schedule they are requesting is in the child’s best interest.

If you are seeking a 50/50 possession schedule be prepared to show the court that you are involved in the day-to-day care of the child, from breakfast, to car pool, to soccer practice, to homework and bath time. Talk to your attorney and explore your options. 50/50 possession schedules are growing increasingly common and the best interest of the child allows the court to deviate from the Standard Possession Order under the right circumstances.

 

When You Can't Agree, Let Your Order Be Your Guide

In perfect world, former spouses would always agree on possession time with their kids and would cooperate so well with each other that they would never even need to consult their divorce decrees.  This happens in a few rare cases. But, more often than not the relationship between exs is emotionally charged and the same communication problems that contributed to the end of the romantic relationship persist.  This is not to say good co-parenting is impossible.  But gray areas still arise even when both parties truly have their children’s best interests at heart and people get confused about things like summer possession time, when father’s day visitation ends, who has the right to enroll the children in school or counseling, and what is supposed to happen with medical reimbursement.

The solution to all of this simply put is become an expert when it comes to your divorce decree.  Know it front and back.  Have your attorney explain the things that confuse you.  Scan a copy into your computer and have access to it on your phone at all times.  Keep a copy in the glove compartment of your car.   When disputes arise about pick up time or where the kids are supposed to be dropped off you can flip open your decree and quickly resolve the issue instead of going back and forth with your ex and getting into a he--said she –said fight.

Because understanding your divorce decree or other child-related orders is so important, make sure you consult your attorney to explain things you might not understand.  Even if it has been years since your divorce, schedule an appointment with your previous attorney to get questions answered.  Or, if you would rather seek the advice of someone new, schedule a consultation with another experienced family lawyer.  The piece of mind a consultation fee could buy you may be priceless.

One Size Does Not Fit All: Possession for Children Under Three Part 2

As we know from my blog from last week, courts in Texas have not adopted a standard possession schedule for children under three years of age. Instead, possession will be determined on a case-by-case basis using the factors listed in Texas Family Code as a guide.  What this means is that you (or your lawyer) will have to advocate for the possession schedule that you believe to be in your child’s best interest.

One example of a possession schedule commonly used for children under the age of three provides step ups in possession time for the non-primary parent (the parent without the right to designate the child’s primary residence) as the child gets older and works its way up to the Standard Possession Order by the time the child is three years old:

  • Children Under Six Months of Age:

Weekdays: On Wednesdays and Fridays of each week from 6:00 p.m. until 8:00 p.m. that same day.

Sundays: On Sundays of each week from 4:00 p.m. until 6:00 p.m. that same day.

Alternative Times: For three periods of two hours each during any seven-day period, with no more than two days between periods of possession whenever possible.

  • Children Between Six Months & Eighteen Months of Age:

Weekdays: On Wednesdays and Fridays of each week from 6:00 p.m. until 8:00 p.m. that same day.

Sundays: On Sundays of each week from 2:00 p.m. until 6:00 p.m. that same day.

Christmas: From Noon until 4:00 p.m. on Christmas Day each year.

Thanksgiving: From Noon until 4:00 p.m. on Thanksgiving Day each year.

Birthday: From 6:00 p.m. until 8:00 p.m. on the child’s birthday each year.            

Alternative Times: For two periods of two hours each and one four hour period during any seven-day period, with no more than two days between periods of possession whenever possible.

  • Children Between Eighteen Months and Three Years of Age:

Weekdays On Wednesdays and Fridays of each week from 6:00 p.m. until 8:00 p.m. that same day.    

Sundays: On Sundays of each week from Noon until 6:00 p.m. that same day.

Christmas: In odd-numbered years from Noon until 6:00 p.m. on December 26th of each year. In even-numbered years from Noon until 6:00 p.m. on December 25th of each year.              

Thanksgiving: In odd numbered years from 10:00 a.m. until 6:00 p.m. on Thanksgiving Day each year.

Birthday: From 6:00 p.m. until 8:00 p.m. on the child’s birthday of each year.

Alternative Times: For two periods of two hours each and one six hour period during any seven-day period, with no more than two days between periods of possession whenever possible.

  • Children Three Years of Age and Older:

Standard Possession Order.

Since possession schedules for children under three depend on so many factors, there is a lot of room for variation. Recently, John Zervopoulos. Ph.D., J.D., ABPP, told me about a booklet of possession schedule options for children of all ages that many courts in Arizona use called Model Parenting Time Plans for Parent/Child Access. It was developed by a statewide committee of judicial officers, mental health professionals, and attorney in that state and provides options for possession with children under three.

 

One Size Does Not Fit All: Possession for Children Under Three

If you have been involved in a suit affecting the parent-child relationship you are probably familiar with the Standard Possession Order. In Texas, the law presumes that the Standard Possession Order (Thursday nights and 1st, 3rd, and 5th weekends of each month, with shared holidays and 30 days in the summer for the non-custodial parent) is in the best interest of the children over three years of age. But what about children under three? The answer is not quite as simple.

For children under the age of three, the Standard Possession Order does not apply. The Texas legislature has declined to provide a set schedule for children this young, instead opting to provide us with a list of factors, including the caregiving provided to the child and the effect on the child that may result from separation from either party, the court should take into account when determining a possession. Texas Family Code 153.254 provides:

A)    The court shall render an order appropriate under the circumstances for possession of a child less than three years of age. In rendering the order, the court shall consider evidence of all relevant factors, including:

1.     the caregiving provided to the child before and during the current suit;

2.     the effect on the child that may result from separation from either party;

3.  the availability of the parties as caregivers and the willingness of the parties to personally care for the child;

4.     the physical, medical, behavioral, and developmental needs of the child;

5.     the physical, medical, emotional, economic, and social conditions of the parties;

6.     the impact and influence of individuals, other than the parties who will be present uring periods of possession;

7.     the presence of siblings during periods of possession;

8.     the child’s need to develop healthy attachments to both parents;

9.     the need for continuity of routine;

10. the location and proximity of the residences of the parties;

11. the need for temporary possession schedule that incrementally shifts to the schedule provided in the prospective order under Subsection (d)[The Standard Possession Order] based on:

a)     the age of the child; or

b)     minimal or inconsistent contact with the child by a party; 

12. the ability of the parties to share in the responsibilities, rights, and duties of parenting; and

13. any other evidence of the best interest of the child.

Keep these factors in mind when talking with your attorney about a possession schedule for your young child. These things will be what the court looks at in making a decision. Without a statutory schedule as a fall back, it is important to present evidence that gives the court as much information as possible about these factors. 

Stay tuned next week for sample possession schedules for children under three. If you want to learn more about the Standard Possession Order, see Sarah Darnell’s recent blogs on this subject.

 

Texas divorce and child custody FAQ: Can I take my children on vacation during my divorce or custody case?

Many counties in Texas have Standing Orders that contain specific injunctions regarding the removal of children beyond the state of Texas during the pendency of a divorce or child custody case. Many of these Standing Orders specifically prohibit anyone from removing the children beyond the state of Texas unless you have a written agreement of the parties and/or a specific court order that allows you to do so. Therefore, you can take your children on vacation, but you have to stay within the boundaries of the state of Texas, unless the other party agrees in writing and/or you obtain a court order that allows you to do so. 

Understanding the Texas Standard Possession Schedule: Part IV

With summer just around the corner it is important to understand what periods of possession that each parent is entitled to during the summer months.

If you are the non-primary parent and you reside within 100 miles of the primary residence of the children, then pursuant to the Texas Standard Possession Schedule, you are entitled to 30 days of uninterrupted extended summer possession with your children. You are required pursuant to the Texas Standard Possession Schedule to designate the 30 days of your choosing by April 1 in all years. If you fail to designate 30 days of possession by April 1 in any given year, then the default 30 days are July 1 – July 31.

If you are the primary parent, then pursuant to the Texas Standard Possession Schedule, you are entitled to have possession of the children on any 1 weekend during the non-primary parent’s 30 days of summer possession, if you provide written notice to the non-primary parent by April 15 of each year. In addition to this 1 weekend, you are also entitled to 1 additional weekend of possession during the summer that would otherwise have been the non-primary parent’s 1st, 3rd, or 5th weekend period of possession. You must designate this weekend by April 15 or provide at least 14 days’ prior written notice to the non-primary parent.   The weekends selected by the primary parent cannot interfere with the non-primary parent’s Father’s Day possession, if the non-primary parent is the father of the children.

It is important to remember/consider the following in order to maximize your extended summer possession with your children:  

·       You will continue to have possession of your children on the 1st, 3rd, and 5th weekends of the month during the summer in addition to the 30 days of extended summer possession;

·       You will not have Thursday possession during the summer as this possession occurs only during the regular school term;

·       If you are the mother of the children you are entitled to possession of the children on Mother’s Day weekend in addition to your 30 days in the summer;

·       If you are the father of the children you are entitled to possession of the children on Father’s Day weekend in addition to your 30 days in the summer;

·       Your 30 days of summer possession do not have to be exercised in 30 consecutive days. You can break it up into no more than 2 periods of at least 7 consecutive days;

·       Your extended summer possession cannot begin any earlier than the day after the children are released from school for summer vacation;

·       Your extended summer possession must end at least 7 days before school begins the following school year.

Tips for Understanding the Texas Standard Possession Schedule: Part III

 

The Children’s Birthdays 

Pursuant to the Texas Standard Possession Schedule, the parent that is not entitled to present possession of a child on the child’s birthday shall have possession of the child beginning at 6:00 p.m. on the child’s birthday and ending at 8:00 p.m. on that day. 

In order to determine if you are the parent entitled to present possession of the child on the child’s birthday in any given year, it is a good idea to look at the calendar at the beginning of each year and determine which parent is entitled to possession of the child on his or her birthday. If you are the parent that is not scheduled to have possession of the child on his or her birthday, then you have the right to have possession of the child on his or her birthday beginning at 6:00 p.m. on the child’s birthday and ending at 8:00 p.m. on that day for that year. 

If you intend to exercise your right to have possession of the child for his/her birthday in any year, it is a good idea to give the parent that is scheduled to have possession of the children notice that you intend to exercise your right to possession of the child on his/her birthday for that year as early as possible. This will allow both parents the ability to plan the child’s birthday celebrations accordingly.  

Father’s Day 

Pursuant to the Texas Standard Possession Schedule if the Father of the children is designated as a conservator of the children, then he is entitled to possession of the children beginning at 6:00 p.m. on the Friday preceding Father’s Day and ending at 6:00 p.m. on Father’s Day in all years. 

Mother’s Day 

Pursuant to the Texas Standard Possession Schedule if the Mother of the children is designated as a conservator of the children, then she is entitled to possession of the children beginning at 6:00 p.m. on the Friday preceding Mother’s Day and ending at 6:00 p.m. on Mother’s Day in all years. 

The following additional periods of possession and access to the children are specifically addressed by the Texas Standard Possession Schedule:

  • Spring Break/Spring Vacation; and
  • Summer Possession.

Spring Break / Summer Vacation 

Pursuant to the Texas Standard Possession Schedule, spring vacation is alternated between the parents each year in most cases. Spring vacation is similar to Thanksgiving holiday because it is not divided into a front-half and back-half like Christmas holiday. 

If you are the possessory conservator, you will have possession of the children for spring vacation in even-numbered years beginning at the time that the children are released from school for spring vacation and ending at 6:00 p.m. on the day before school resumes from spring vacation.   The managing conservator will have possession of the children for spring vacation in odd-numbered years beginning at the time that the children are released from school for spring vacation and ending at 6:00 p.m. on the day before school resumes from spring vacation.

If the parents of the children reside 100 miles or more apart, then the possessory conservator shall have possession of the children for spring vacation in all years beginning at the time that the children are released from school for spring vacation and ending at 6:00 p.m. on the day before school resumes from spring vacation. 

Next week I will discuss and provide tips for understanding how to designate and maximize your summer periods of possession of the children.

Tips for Understanding the Texas Standard Possession Schedule: Part II

 

Holidays are an important time of the year for most parents. In Texas, the Standard Possession Schedule provides specific dates/times for each parent to spend time with their children during the holidays. Not all holidays are addressed by the Texas Standard Possession Schedule. 

The Texas Standard Possession Schedule contains specific terms for possession of the children for both parents for some of the major holidays. Not all holidays are addressed by the Texas Standard Possession Schedule. Therefore, if there is a holiday that you would like to be addressed by the Court or by agreement, then you need to make sure that the terms of possession of the children for that particular holiday are addressed in any and all orders regarding possession of the children.

The following holidays are specified in the Texas Standard Possession Order and are not altered regardless of the distance that the parents reside from one another:

1.     Christmas;

2.     Thanksgiving;

3.     The Children’s birthdays;

4.     Father’s Day; and

5.     Mother’s Day.

In order to fully understand the Texas Standard Possession Schedule, it is important to know whether you are the “possessory conservator” or the “managing conservator.”

The managing conservator is also referred to as the “primary conservator” or the parent with the exclusive right to designate the primary residence of the children. The possessory conservator is commonly known as the parent that exercises their possession pursuant to the Standard Possession Schedule and/or the “non-primary conservator.”

Additionally, if you have children that are in daycare and/or are not yet of school age, then you need to review and obtain a copy of the school district calendar from the school district that the child would attend based upon his/her primary residence, if the child was attending school. This is the calendar that should be used in order to determine when your holiday periods of possession with the children should begin and end.

Christmas

Pursuant to the Texas Standard Possession Schedule Christmas is divided up between the parents into two separate parts, “a front-half and a back-half.” This allows each parent the opportunity to have possession of the children during the Christmas holiday in all years.

The front-half of Christmas in all years begins at 6:00 p.m. on the date that the children are released from school for the Christmas break and ends at noon on December 28. The back-half of Christmas in all years begins at noon on December 28 and ends at 6:00 p.m. on the day before the children return to school from Christmas break.

Pursuant to the Texas Standard Possession Schedule, the front-half and back-half of Christmas are rotated between the parents in even-numbered years and odd-numbered years.  If you are the possessory conservator, you will have possession of and access to the children for the front-half of Christmas in even-numbered years. The managing conservator will have possession of and access to the children for the back-half of Christmas in even-numbered years. If you are the managing conservator, you will have possession of and access to the children for the front-half of Christmas in odd-numbered years. The managing conservator will have possession of and access to the children for the back-half of Christmas in odd-numbered years. 

Thanksgiving

Pursuant to the Texas Standard Possession Schedule, Thanksgiving holiday is alternated between the parents each year. Thanksgiving holiday is not divided into a front-half and back-half like Christmas holiday. 

If you are the possessory conservator, you will have possession of the children for Thanksgiving holiday in odd-numbered years beginning at the time that the children are released from school for Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.   The managing conservator will have possession of the children for Thanksgiving holiday in even-numbered years beginning at the time that the children are released from school for Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.  

 

Tips for Understanding the Texas Standard Possession Schedule

 

There are times when parents get confused regarding which parent is entitled to possession of the children pursuant to a Texas Standard Possession Schedule. The key to eliminating the confusion is to understand how the Texas Standard Possession Schedule operates.  

Over the next several weeks, I will break down portions of the Texas Standard Possession Schedule and provide tips for understanding how it operates.

Weekend Periods of Possession:

The Texas Standard Possession Schedule states that the parent exercising possession pursuant to this schedule shall have possession of the children on the weekends as follows:           

“On weekends that occur throughout the year, 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.”

It is important to note that when you are determining which weekend is the first weekend of the month you should always look at Friday, not Saturday.  You look at Friday and not Saturday because Friday is the day that your weekend period of possession begins. For example, if the first day of the month falls on a Friday, then that is the first weekend of the month. However, if the first day of the month falls on a Saturday, then that is not the first weekend of the month. The following weekend would be the first weekend of that particular month. 

If you are the parent that is exercising standard possession, it is important to understand that the 1st, 3rd, and 5th weekends of the month are not the same thing as every other weekend. For example, if there is a month that contains a fifth weekend, then the parent exercising standard possession will have possession of the children for two consecutive weekends because the following weekend will be the first weekend of the month.

Weekday Periods of Possession:

The Texas Standard Possession Schedule states that the parent exercising possession pursuant to this schedule shall have possession of the children during the week as follows:                    

“On Thursday of each week during the regular school term, beginning at 6:00 p.m. and ending at 8:00 p.m.”

It is important to note that the Thursday periods of possession are only exercised during the regular school term and not throughout the year as are the weekend periods of possession.         

Additionally, during the regular school term, the parent exercising standard possession is entitled to possession of the children on Thursday of every week during the regular school term.

Final tip for the week:

It is helpful to plan ahead. Take a blank calendar and mark the days and times that are “your days” with your children. Then, send a courtesy copy to the other parent months in advance. This should assist both parents with minimizing any confusion regarding which parent is entitled to possession of the children on any given day or weekend.

Next week I will discuss holiday possession pursuant to the Texas Standard Possession Schedule.

 

Tips for Avoiding (or Minimizing) Summer Travel Woes

Summer is just around the corner and for many families this means fun travel plans and summer vacations.  But, if you have been through a divorce or are in the process of divorcing now, nothing can throw a wrench in your summer travel plans faster than an uncooperative ex with an ax to grind.  If your ex (or soon-to-be ex) is not the type to put their own sometimes questionable agenda aside for the good of the kids, planning and actually taking a summer vacation with your children can be a source of stress, anxiety, and tension for the entire family.

The most important thing you can do to avoid conflict and confusion that can surround your summer travel plans is to clearly designate your extended summer possession in accordance with your divorce decree and/or temporary orders.  Letting the other parent know that your designated days are off limits can help avoid disruption in your vacation plans and in any activities that you would like to schedule for your kids, like summer camp or swimming lessons.  Make sure that you provide the other parent with written notice of your summer designation, that your dates are clear, and that you send your notice in a manner that you can prove the other side received it later if need me (for example by certified mail or through your attorney).

Another good way to minimize the stress that can surround travel plans is to include provisions regarding passports and notice of international travel in your divorce decree and/or temporary orders.   Setting the procedure for international travel can bring comfort and security to both parents – bringing the traveling parent satisfaction in knowing that their travel plans will not be sabotaged at the last minute and allowing the non-traveling parent to take comfort in the fact that they know their child’s plans, flight numbers, destination, and contact information in case of an emergency.  Clearly establishing the ground rules for who will hold the child’s passport and how important travel documents will be exchanged can help avoid conflict and stress for everyone.

While it will be impossible to avoid every conflict about summer travel, advanced planning, clear divorce decrees or temporary orders, and proper notice to the other parent can go a long way.

April 1st is More than Just April Fools' Day: Missing the Deadline to Designate Extended Summer Possession in Texas is no Laughing Matter

 

All jokes aside, your failure to timely designate your period(s) of extended summer possession could impact your summer plans.   It is that time of year again for all divorced and/or separated parents to designate the dates that they wish to have possession of their children for summer 2012. So, before you start planning that well-deserved summer vacation with your children make sure that you have sent the proper notification to the other parent. 

The Texas standard possession order for summer visitation requires both parents to take action by either April 1st or April 15th of each year if they wish to select dates for summer visitation with their child/children. 

If you are the non-custodial parent/possessory conservator, then you must submit, in writing, the dates that you wish to have extended summer possession with the child/children by April 1, 2012. Failure to submit your desired dates on or before April 1, 2012 may result in you having no choice regarding your extended summer possession this year.   Most orders state that if the possessory conservator fails to designate his or her extended summer possession on or before April 1, then they shall exercise their extended summer possession for that year beginning on July 1 and ending on July 31.

If you are the custodial parent/primary conservator, then you must submit, in writing, the dates that you wish to have extended summer possession with the child/children by April 15, 2012. Most orders state that if the primary conservator fails to designate his or her extended summer possession on or before April 15, then they shall elect their extended summer possession for that year by providing the other parent conservator with fourteen days' written notice of the dates that they have selected.

Key Points to Remember when Selecting Dates for Summer Possession: 

 

  • If you are the mother do not select dates that interfere with Father’s Day Weekend, which is the weekend of June 15, 2012;
  • If you are the father do not select dates that interfere with Mother’s Day Weekend, which is the weekend of May 11, 2012;
  • Please remember that all summer possession must be completed within a specified time period. The time period for exercising summer possession begins on the day after the child's school is dismissed for the summer vacation and ends no later than seven days before school resumes at the end of the summer vacation. Be sure to look at your child’s/children’s school calendar to ensure that you comply with this requirement.
  • If you are the possessory conservator and you reside within 100 miles or less from the primary residence of the child, then you can select 30 days for extended summer possession. You do not have to select 30 days in a row. You can break up the days into no more than two separate periods of at least seven consecutive days each.
  • If you are the possessory conservator and you reside over 100 miles apart from the primary residence of the child, then you can select 42 days for extended summer possession. You do not have to select 42 days in a row. You can break up the days into no more than two separate periods of at least seven consecutive days each.

If you need help designating your summer access, contact one of our Texas custody lawyers for help.

 

A Family Friendly Approach to Resolving Child Access

Posted by Michelle May O'Neil on August 22, 2011

When it comes to establishing each parent’s individual roles and their levels of involvement, influence, and time spent with the children, the terms most discussed and debated are joint custody, sole custody, and visitation. Generally, physical child custody (whether sole, shared, or split) really comes down to the amount of time spent with one’s children. Custody in the legal sense (that is, legal custody) governs who will make what types of decisions affecting the health, education, and general welfare of the children and under what circumstances such decisions will be made.

Parent and child un-friendly terms

Basically, without further definition or limitation, a parent with sole legal custody calls all the significant shots with or without the other parent’s “consent” or input. The term custody often provokes anger and resentment between bickering parents. The word custody in its basic and primary sense suggests possession and control.

In moderate to highly contentious cases, the initial fight for control is often a key catalyst to a perpetual battle. The children’s feelings and emotional well-being often get lost in all the posturing that accompanies one’s desire to show the other parent who is in the driver’s seat.

The counterpart to custody is visitation. I “visit” clients in jail. Priests “visit” the dying in hospitals and nursing homes. Doesn’t “visitation” suggest a short stay? Generally, we visit people or places that we don’t see too often. When we are young we shouldn’t be “visiting” our parents, we should be spending time with them. A parent’s perception of terms like custody and visitation often fosters power-based and position-oriented discussions. This is usually not productive when the lives of our children are at stake.

Changing words for the better

In recognizing the power of suggestion and influence that can be derived from legal terms and principles in the area of family law, legal wizards have made significant efforts in the last decade or so to use more appropriate terms when discussing how to govern the lives of our children and the parent-child relationships that are affected by separation and divorce. These days, custody and visitation are more appropriately discussed in terms of child access and parental involvement.

Parents who are caught up in “child access disputes” should take special care to focus their respective and combined efforts in arriving at a fair and reasonable “parenting plan” and a “residential schedule” that works best for their children.

No schedule = no stability

When there is an ongoing fight over child access, it is important to realize that the term stability, in the context of fighting over the division of parental time, is an oxymoron if there is no agreed-upon schedule. When there is an ongoing power struggle to maximize or minimize parental time, the life of the child is anything but “stable.”

Children adapt. The theories or justifications of years past, the “traditional visitation schedule” if you will, that subscribed to the notion that a child needs to only regard one parent’s house as “home” and that he must sleep in the same bed every night is far less important than often proclaimed.

A 50-50 schedule works

While it is not presumed that 50-50 is best for all children in all situations, it sure seems like a fair place to start. Furthermore, I have found that if the parents truly opt to act in accordance with the children’s best interests and if each parent operates from such a position of theoretical and practical equality, it is far more likely that one parent will voluntarily, if, when, and as needed, make the sacrifice of diminished time if it is truly beneficial to the children’s schedule.

Once the power struggle for control and the claim for the overwhelming majority of time are abandoned, it simply will not be as important when compared to what may genuinely be in the children’s best interests.

Court orders must be precise

If the division of time is not mutually satisfactory, or if it is not otherwise possible to arrange a basic schedule with a certain amount of predictability (along with situational flexibility, respect, and cooperation), a court ordered schedule will ultimately be forced upon you. In such situations, any written document or court order must leave nothing open to interpretation. This is still far easier and far less damaging to the children than the constant tug of war that often will occur in parental skirmishes.

How to create a schedule

There are many ways to approach the development of a residential and access schedule. Rather than explain or justify any of them, let’s start with a few basic principles.

  • There is no moral entitlement to anything more than equally dividing the time the children spend with each parent.
  • There is no legal entitlement to equal parenting time.
  • If you and the other parent were both completely committed to working out a schedule that maximizes each parent’s time with the children, you could do it.
  • The children’s best interests are usually served when measured within the reasonable and practical limits of life in general and balanced in particular with the parenting styles and attributes of each parent.
  • If each parent felt secure that they would truly have reasonable and liberal time and access with their children, without being unreasonably rebuffed, the counting of overnights would become less important and a more stable schedule (whatever the percentage of time comes to be) would be more likely to develop on its own.
  • The best schedule is one that minimizes conflict and maximizes the children’s time with each parent.

Although maximizing parental time is very important, it should yield to the best interests of the children. And obviously, each parent’s differing views about what is or is not in the children’s best interests is one of the many contributors to child custody chaos. The desire for power and control are other major contributors.


This article was excerpted for Divorce Magazine with permission from the book Stop Fighting Over the Kids by Mike A. Mastracci

Spring is in the Air and the Deadline to Designate Summer Possession is Just Around the Corner

Posted by Ashley Russell on March 24, 2011          

           Spring is in the air and summer is right around the corner.  Sun, baseball, vacations, and extended summer possession are just two months away. And, for parents operating under the Texas Family Code’s Standard Possession Order, the April 1st and April 15th deadlines for parents to designate extended summer possession and summer trump weekends are fast approaching.   

          In addition to normal weekend possession during the summer, under the Standard Possession Order a parent without the right to designate the primary residence of the child shall have extended summer possession for 30 days (if that parent lives within 100 miles of the child’s primary residence) or for 42 days (if that parent lives more than 100 miles away from the child’s primary residence). This extended summer possession must be exercised in no more than two separate periods of no less than seven consecutive days each.  Provided the parent gives the primary conservator written notice on or before April 1st each year, they can designate any time for their possession from the time school is dismissed for summer until seven days before the child’s school resumes after summer vacation. If the non-primary parent fails to provide notice of their extended summer possession dates by April 1st, then they will have extended summer possession beginning at 6 pm on July 1st and ending a 6 pm on July 31st (June 15th – July 27th for parents who reside more than 100 miles from their child’s primary residence).

           Similarly, under the Standard Possession Order, primary parents can designate one weekend during the non-primary parent’s extended summer possession during which the primary parent will have possession of the child.  In order to exercise this “trump” weekend, the primary parent must pick up and return the child to the non-primary parent and must give the non-primary parent written notice of their weekend by April 15th.  Likewise, primary parents have another deadline of April 15th (or 14 days in advance) to provide the non-primary parent with written notice of one weekend during the child’s summer vacation during which an otherwise scheduled weekend period of possession by the non-primary parent will not take place.  This second “trump” weekend cannot interfere with Father’s day (if the father is the non-primary parent) or with the non-primary parent’s extended summer possession.  

          As a Texas family law attorney, I understand the importance of summer time possession for “primary” and “non-primary” parents alike.  Complying with the notice provisions of your child custody order can help summer time planning go more smoothly for everyone, including your children, and helps minimize (to the extent possible) friction and misunderstandings between you and your ex.  So, keep April 1st and April 15th in mind and happy planning!      

What Is A Parenting Plan in Texas?

What Is a Parenting Plan in Texas?

A Texas parenting plan involves either an agreement or court order between parents that allocates the time the children will spend with each parent, how decisions will be made and how parenting responsibilities will be shared. This type of agreement allows parents to avoid future conflicts as a result of a lack of guidelines for handing situations. Some parents are able to agree as to the distribution of the various considerations among the parents, but others may disagree as to how to handle the issues regarding the children. When parents disagree as to the best interest of the children, the Texas divorce courts will make the final decision. 

The basic elements of a parenting plan include:

 

  • A schedule for when the children will spend time with each parent on a regular basis;
  • How holidays will be shared by the parents;
  • How to handle changes and adjustments that arise from time to time;
  • Who will make day-to-day decisions regarding the children;
  • How to share making important decisions regarding the children;
  • Arrange for the exchange of the children for each parent’s time;
  • Decide how to provide for the daily support of the child with each parent;
  • Arrange for the extra financial expenses of the children, such as medical expenses, and extracurricular activities.

It can also be helpful to determine a method of resolving future conflicts or disagreements that may arise. Some parents have the court appoint a parenting coordinator to assist in dispute resolution. Others may agree to attend mediation or counseling to resolve future disputes.

Parenting Over The Miles - Ten Ways to Bond With Your Child From A Distance

It is easier than ever before to stay in touch with your child, even from a distance. Learn 10 ways to use technology to communicate and bridge the distance when you cannot be in person.

The recent case out of New York where, according to Fox News, the Judge allowed a mother to move with her child from New York to Florida, but court-ordered access by the father through Skype, sheds light on the challenges of parenting in this new time of mobility. The good news is that modern technology provides valuable ways for parents to stay in touch, even over the miles, and Skype is not the only option.

 

Texas was the third state in the US to mandate frequent contact between parents and children via electronic communication. “The law usually lags behind in keeping up with technology, but in Texas, parents have options available to request electronic access to their children in the right situation, says Dallas Divorce Lawyer Michelle May O’Neil, a Texas board certified family law specialist.

  1. The Telephone. Agree or disagree, most kids these days have cell phones. This can be a benefit in staying in touch over a distance because it gives the parent and child the flexibility to make contact directly. The parent does not have to go through the other parent to reach the child, therefore reducing the potential for conflict. And, the child can be at home or anywhere else to be reached.
  2. Text messaging. It’s all around us. People are texting while driving and cities are passing laws prohibiting it. Teenagers are being banned from having cell phones in school because they are distracted by texting. Many teens conduct full relationships over text without ever speaking in person. A parent can get in on this act by communicating with the child via text message and sharing short ideas back and forth even over great distances.
  3. E-mail. E-mail remains the number one method of communicating over the internet. In parenting, it allows the child and parent to exchange private conversations. One benefit of using e-mail is that the e-mail can be created and sent when the parent is available and read by the child when the child is available, allowing for flexibility in scheduling.
  4. Instant messaging. Many instant messaging programs exists that allow people to exchange messages in real time over the internet without picking up the phone. Yahoo messenger or Windows Messenger or other similar programs provide a way for parents to have a quick exchange with their child in a forum that will be familiar to the child.
  5. Skype or other video conferencing. The internet provides options for free or inexpensive conferencing over the internet, including video conferencing. Skype seems to be the most talked about service, with some judges getting into the act by ordering Skype access. Video conferencing allows the parent and child to see each other and make face-to-face contact. “I have one client who lives in the U.K. and her son lives in Texas. They use Skype to keep in touch weekly,” offers O’Neil.
  6. Facebook. Teenagers and others use Facebook to keep in touch with friends, but parents can also stay up on the activities of the child by reading the posts and responding. If the child posts about a bad day or negative event, the parent can use the opportunity to cheer up the child. As a side benefit, a parent can also keep up with the child’s friends on Facebook.
  7. Twitter. Like a combination of texting and Facebook, Twitter is a forum that allows users to post very short status updates about their thoughts and activities. A parent can subscribe to the child’s posts and read or comment on what is going through the child’s mind at the moment.
  8. You Tube. You Tube provides a way for users to post videos of their observations. Parents can use this in keeping involved in the child’s life by, for example, posting a video to share with the child of some event going on at the parent’s home while the child is with the other parent. Bringing a new puppy home? Make your long-distance child a part of the event by recording it and sharing the video on You Tube.
  9. Flickr. Much like You Tube, a parent can use Flickr to post photos of events and share with the child. If the child is involved in a school play but the parent cannot attend, have the child or other parent take pictures and share on Flickr.
  10. Whiteboard. Whiteboarding is similar to instant messaging in that the communication occurs in real time. But, whiteboarding stands apart in the ability to draw, use shapes, collaborate over images, and use voice chat while doing it. A parent can use whiteboarding to help a child with homework. “One client I have bought the same math book the child uses in school and then uses a whiteboard website to help the child understand his homework, even when the parent is across the country,” offers O’Neil. Scriblink.com is one example of a free whiteboard website.

Time and effort, says O’Neil, are the important factors in maintaining a relationship over a long-distance between a parent and child. The internet provides many tools that can help a parent and child creatively stay in touch.

Internet Parenting -- Skype Style

Skype, Facebook, Twitter, You Tube, whiteboard, Flickr, e-mail, texting, instant messaging – these are only a few of the ways that people stay in touch via the internet. It seems like the telephone has become old-fashioned and outdated. In long distance parenting relationships, it is easier than ever before to stay involved in the day-to-day activity of the child.

Brian and Kathy are the parents of Larry but they have never been married to each other. Brian lives in the Great Britain but Kathy and Larry moved back to Texas a year ago. Brian visits with Larry weekly using Skype. Since Brian is a math-whiz and Kathy dislikes the math homework, Brian often helps Larry do his math homework using a whiteboard website during his Skype visits. Brian gets to see Larry in person in the summer and on holidays. But, without electronic visitation, his relationship with Larry would be much more tenuous.

Electronic communication gives parents and children a way to creatively structure parenting time when face-to-face meetings will not work. It allows for flexibility in accounting for busy schedules. Using Skype, a long-distance parent can see a child’s condition in real time. Using whiteboard or instant messaging, a parent can help with homework. You Tube, Flickr, and Facebook allow for almost instant exchange of pictures or video of a child’s activities. Teenagers might post frequent short updates as to their activities or feelings via Twitter.

The Texas Legislature saw the value in electronic visitation, endorsing frequent contact between parents and children by telephone, electronic mail, instant messaging, videoconferencing, or webcam as early as 2007. At the time, Texas was only the third state to move to the age of the internet. Texas Family Code provision entitled “Electronic Communication with Child by Conservator” sets out the specifics for electronic visitation. Tex. Fam. Code 153.015. Divorcing parents can agree, or, under this section of the Family Code, courts can order “reasonable periods of electronic communication with the child to supplement the parent’s period of possession.

In determining whether to order an electronic communication schedule, including a schedule for telephone access, courts consider three things:
1. whether electronic communication is in the best interest of the child;
2. whether equipment necessary to facilitate the electronic communication is reasonably available to all parties subject to the order; and
3. any other factor the court considers appropriate.

If the court awards a conservator periods of electronic communication with the child, the parents will be required to provide each other with the children’s e-mail address and other information necessary for electronic access; notify each other within 24 hours when the child’s e-mail address of other information changes; and accommodate electronic visitation with the child at reasonable times with the same privacy, respect, and dignity accorded to all form of access, including physical possession.

Practically, the electronic communication schedule could allow the long-distance parent to communicate with the child via e-mail, then designate a period during which the parent would have access to the child via webcam or Skype. Telephone access schedules are also very common, designating a set time or range of time during which the parent not in possession will be allowed to call the child. It is important to consider the child’s schedule when setting a telephone access or electronic visitation schedule.

"Internet communication fosters a meaningful opportunity for communication between parent and child, when traditional means of access would not," says Michelle May O'Neil, . "But, the law requires the long-distance parent to be given that time without interference or hovering by the other parent."

"I have one case where the father travels on business a great deal and misses out on some of the important parenting time with his daughter," recounts O'Neil. "He visits with her via Skype from almost anywhere, airport, hotel room, even dinner meetings."

A New York judge last week permitted a mother to move from New York to Florida with her children, over the father's objection, but the judge required the mother to provide, at her expense, the necessary equipment to allow the father to Skype with the children at least 3 days per week. (Debra Baker v. James Baker, 29610-2007, NYLJ 1202464436957, at *1 (Suffolk Cty. Sup., August 4, 2010.)

While convenient and potentially cost-efficient, it is clear that electronic visitation and/or telephone access are not intended as a substitute for actual physical possession of the child. Telephone access and electronic visitation are instead a means of supplementing physical possession, facilitating the connection between the child and the long-distance parent.
 

Long Distance Visitation -- Airline Policies

Many parents have long distances to bear between their children and themselves.  On Fridays and Sundays at the ariport, one can see many parents escorting kids to and from flights.  Airlines have regulations addressing flights for minor children flying without an adult -- called Unaccompanied Minors.  The regulations and fees charged vary between the airlines.  Here's a summary of the various airlines policies:

Airline

Kids Flying Solo Age 5-7

Kids Flying Solo Age 8-11

Kids Flying Solo Age 12-14

Kids Flying Solo Age 15-17

Kids Flying Internationally

AirTran

$39 (nonstop or direct only)

$39 (nonstop or direct only)

$39-$59 (optional)

Call airline for options

N/A

Air Canada

Not Allowed

$100

$100

$100 (optional)

$100

Alaska

$75 (nonstop only)

$75 (no codeshare flights)

$75 (optional)

$75 (optional)

$100

American

$100 (nonstop only)

$100 (no codeshare flights)

$100 (no codeshare flights)

$100 (optional)

$100

Continental

$75 (nonstop only)

$75 (nonstop) or $100 (connecting)

 $75 (nonstop) or $100 (connecting)

Not Offered

$75 (nonstop) or $100 (connecting)

Delta

$100 (nonstop or direct only)

$100 (nonstop or connecting, no codeshares)

$100 (nonstop or connecting, no codeshares)

$100 (optional)

$100

Frontier

$50

$50

$50

Not Offered

N/A

Hawaiian Air

$35 inter island Hawaii and $100 mainland nonstop only

$35 inter island Hawaii and $100 mainland nonstop and connecting

$35 inter island Hawaii and $100 mainland nonstop and connecting

Optional $35 inter island Hawaii and $100 mainland nonstop and connecting

$100

JetBlue

$75 (nonstop or direct only)

$75 (nonstop or direct only)

$75 (nonstop or direct only)

Optional $75 (nonstop or direct only)

$100

Northwest

$100 (nonstop or direct only)

$100 (nonstop or connecting)

$100 (nonstop or connecting)

$100 (optional)

$120 (nonstop or connecting no codeshare)

Southwest

$25 (nonstop or direct only)

$25 (nonstop or direct only)

Not Offered

Not Offered

N/A

Spirit

$100 (nonstop or direct only)

$100 (nonstop or direct only)

Not Offered

Not Offered

13-17 yrs. only with notarized letter

United

$99 (nonstop only)

$99 (nonstop or connecting)

$99 (optional)

$99 (optional)

$99

US Airways

$100 (nonstop only)

$100 (nonstop only)

$100 (nonstop only)

$100 (optional)

$100

Virgin America

$75 (nonstop only)

$75 (nonstop only)

$75 (nonstop only)

$75 (optional)

N/A

British Airways

$50  (nonstop only)

$50  (nonstop only)

$50  (nonstop only)

$50 (optional)

$50  (nonstop only)

Lufthansa

$60-$120 (within Europe) $150 (outside Europe)

$60-$120 (within Europe) $150 (outside Europe)

$60-$120 (within Europe) $150 (outside Europe) (optional)

$60-$120 (within Europe) $150 (outside Europe) (optional)

 $60-$120 (within Europe) $150 (outside Europe)

Feelings of a Father in Song -- Highway 20 Ride

I wanted to share with our readers a very special song I heard today by the Zac Brown Band called Highway 20 Ride about a father's visitation with his son.  Here's the video and lyrics.  Hope this is as meaningful to you and it was to me:

 

Highway 20 Ride:

I ride east every other Friday
But if I had it my way
A day would not be wasted on this drive
And I want so bad to hold you
Son, there’s things I haven't told you
Your mom and me couldn't get along

So I drive and I think about my life
And wonder why that I slowly die inside
Every time I turn that truck around
Right at the Georgia line
And I count the days
And the miles back home to you
On that Highway 20 ride

A day might come you'll realize
That if you see through my eyes
There was no other way to work it out
And a part of you might hate me
But son, please don’t mistake me
For a man that didn’t care at all

And I drive and I think about my life
And wonder why that I slowly die inside
Every time I turn that truck around
Right at the Georgia line
And I count the days
And the miles back home to you
On that Highway 20 ride

So when you drive
And the years go flying by
I hope you smile
If I ever cross your mind
It was the pleasure of my life
And I cherished every time
And my whole world
It begins and ends with you
On that Highway 20 ride....
 

How To Make It Through The Holidays After Divorce

Are you dreading Christmas? Will it be your first special holiday since your separation or divorce? Are you depressed about not having your children for that special day this year? Whatever the holiday, you are not alone. Here are some survival tips to make it through:

1.  Ensure the Children’s Schedule Is Specific.

Confirm the children’s schedule with your ex as far in advance as you can. If you don’t already have a specific schedule set out, then negotiate those days/times as possible. Your children will appreciate knowing in advance where they will be, especially if they need to let Santa know where to deliver their presents!

2.  Don't Fight Over Which Days You Have Your Children.

Make whatever days your have with your children special. Most children of divorce will tell you that it’s not the quantity of time that is important, it is the quality of time – the memories created – during the time you have. If you really need particular days due to work or visiting relatives, offer to trade days with your ex or give your ex those special days next year. Remember the golden rule: treat your ex they way you would like to be treated, even if it isn't reciprocated.

3.  Do Something Special For Yourself.

Enjoy a day by yourself. Open a bottle of wine, watch basketball on television, take a bubble bath, wrap presents -- do whatever you want to do to relax for one day. That way you'll be ready when the kids get there.

4.  Support The Children's Relationship With The Other Parent.

If you need to speak to someone about your sad feelings, talk to a friend or therapist - not your kids. The children don't need to hear it. They need to hear that it is okay to have fun with their other parent too.

5.  Create New Traditions.

This is a new beginning for you and your children so don't try to replicate the past. Find new ways to celebrate the event. You can preserve some of the past traditions but find new ways of celebrating too.   Make the time you have with your children meaningful and something they will always remember.

6.  Get Outside.

Go for a walk or ski or snowshoe. There is nothing more rejuvenating than being outside with nature and your family. When your kids are with you, take them outside too. A good snowball fight can really build up an appetite. Or, the kids will always remember the time they tackled you in a game of football.

7.  Give of Your Heart.

Most people are tight on money this year, and that is likely worsened if you are recently separated. Do something special for the people you love. Maybe you can write a special little poem for each of them or list twenty ways you appreciate them. Gifts often don't have lasting meaning. Can you even list five gifts you received last year or the year before? It is the feelings of love and appreciation that last forever.

8.  Stay Sober.

If you over-drink, you run the risk of crumbling into a pile of self-pity and depression. Nobody wants to see that and certainly your kids don't need to see it. Have fun but be careful so can keep it together emotionally, especially during your first Christmas since your separation.

9.  Surround Yourself With Positive, Supportive People.

If your family or friends are negative, remind them the season is all about gratitude, love and appreciation. Park you own negativity and search for the positive in everything and everyone, even your ex.

10.  Relax.

Know that in time the holidays will become easier to get through and more fun. Just take a deep breath and get through your first set of holidays. Next year, it will be better.

(Adapted from Brian Galbraith of the Ontario Family Law Blog.)

Federal law trumps Texas court on tax issues.

In a July 31, 2009 opinion by the Dallas Court of Appeals, it was confirmed that Federal law trumps Texas law when it comes to income tax issues.  In In re S.L.M., the mother brought child custody proceedings against father.  The district court appointed mother and father as joint managing conservators and awarded mother the right to claim the children as exemptions on her federal income tax return. On appeal, father contended the district court erred in awarding mother the right to claim the two children as tax exemptions.  In re S.L.M., ___ S.W.3d ___, No. 05-08-01277-CV, 2009 WL 2343264 (Tex. App. - Dallas July 31, 2009, no pet. h.).

The Dallas Court of Appeals held the district court erred in awarding mother the exemption rights and examined tax exemptions under the United States Internal Revenue Code.  In computing taxable income, a taxpayer is permitted to claim dependents as exemptions.  29 U.S.C. Sect. 151(a) & (c).  The Internal Revenue Code provides that for divorced parents the custodial parent is the party entitled to the dependent exemption.  Id. at Sect. 152(e)(1).  The Internal Revenue Code defines a custodial parent as the parent having custody of the child for the greater portion of the calendar year.  Id. at Sect. 152(e)(4).

In applying the relevant provisions of the Internal Revenue Code to the facts, the court held that on any given week the father had possession of the children for approximately 100 hours as compared to 68 hours a week for the mother.  Accordingly, the trial court erred in awarding mother the dependent exemptions and reversed its ruling. 

The S.L.M. ruling shows that notwithstanding the power of the district court, Federal law trumps Texas law when it comes to tax issues.  As a Dallas divorce lawyer it is important to stay on top of not only family law developments but developments in other areas that impact family law, including (although sometimes mind numbing) tax law. 

 

Grandparent Access to Grandchild Over Parent's Objection New Law

House Bill 1012, passed by the Texas Legislature and awaiting Governor Perry's signature, changes the Texas Family Code provisions regarding access by a grandparent to a grandchild over the objections of a parent.  The statute allows a court to grant access over a parent's objection by a grandparent to a grandchild.  This changes the prior law that required a court to grant access upon meeting the terms of the statute.  Now, a court may or may not grant the access.  If the court does grant access over a parent's objection, the court must enter certain findings about whether the grandparent has overcome the presumption that a fit parent acts in the best interest of that parent's child by proving that the denial of access to the child would significanly impair the child's physical health or emotional well-being. 

Click here to see the text of HB 1012.

This new law further erodes grandparents' access to grandchildren, particularly in circumstances where one parent has passed away and the other parent refuses to maintain a relationship with the deceased parent's family.  Instead of requiring the court to award access upon meeting the already high standard of proof set out by the US Supreme Court in Troxel v. Granville, the new law allows a court to either grant access or not grant it, even in the face of the required proof.

As a Dallas family law attorney, I have found the Dallas County family court judges to be very amenable to grandparent access to grandchildren.  I have had a couple of cases where one parent passed away and the other parent denied a relationship between the deceased parent's family.  In those cases, the judges have all been very empathetic to the grandparent's situation and wanted to encourage that relationship.  But, I'm sure some judges are not so inclined.

Changes to the Texas Standard Possession Schedule

The Lege has adjourned and left us with a bunch of new laws to sort out.  One of those that applies to Dallas divorce cases involves changes to the Texas Standard Possession Schedule, scheduled to be effective on September 1st. 

House Bill 1012 (click here to see text of enrolled bill) provides that the new default time for the beginning and ending of a possession period will be 6:00 p.m. This time will apply automatically unless a different time is elected by a conservator at the time the order is rendered.  The parent opposed to the new time selected by the other parent must show the time change is not in the best interest of the child.

Under the old law, a parent could elect to have weekends begin at the time school is regularly dismissed, but other parts of the schedule were unclear as to the beginning and ending times of the possession period.  Now, all of these times begin and end at 6:00 p.m., unless otherwise specifically stated.

Upon request, the court must alter the standard possession order unless the court finds that alteration is not in the best interest of the child to allow the possession to begin or end when school lets out or resumes for the following periods of possession:  weekends, Thursdays, Spring Break, Christmas, Thanksgiving, and Mother's Day/Father's Day.  In most districts, Father's Day occurs during the summer when school is not in session, but it can be extended to another time upon request.

Comment:  As a Dallas Divorce Lawyer, who is Board Certified in Family Law, I think this law may be somewhat confusing in application.  Our current standards provide that the Texas Standard Possession Schedule automatically applies unless a party shows a reason why it should not, making the Texas Standard Possession Schedule the presumption and placing the burden on the party opposed to it.  This new law makes the changes to the Texas Standard Possession Schedule the presumption, which may cause confusion in figuring out who has the burden of proof regarding the changes.  MMO