Dallas Divorce Law Blog : Dallas Texas Divorce Lawyer & Attorney : O'Neil Attorneys Law Firm : TX Child Support & Custody Issues

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 1^st and April 15^th 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 1^st 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 1^st, then they will have extended summer possession beginning at 6 pm on July 1^st and ending a 6 pm on July 31^st (June 15^th – July 27^th 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 15^th (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 1^st and April 15^th in mind and happy planning!      

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As a Dallas divorce lawyer, I frequently have clients that come into my office wanting “sole custody.”  Custody is a term that means different things to different people.  In this series of blog posts, I’ll explain how “custody” is determined in Texas.  The first post in this series will define the words Texas courts use in determining custody issues. 

In Texas conservatorship is the term that equates with custody.  Chapter 153 of the Texas Family Code sets forth the framework for appointing individuals as conservators and granting rights of possession and access to a child. 

There are two types of conservators: managing and possessory.  Managing conservators are further divided into two sub-categories, sole and joint.  A sole managing conservator is a person that is granted exclusive rights to make decisions for the child.  A joint managing conservator is one of two people who share the rights and duties of a parent, even if the exclusive right to make certain decisions (for example, the place of the child’s primary residence) is awarded to only one person.  A possessory conservator is a person who is designated by the court as having a right to possession of a child under specified conditions, and who is authorized during their periods of possession to exercise certain rights of a parent.  A very common misconception regarding joint managing conservators is that each parent must have equal periods of possession.  Also, a possessory conservator can exercise his or her periods of possession to the exclusion of a managing conservator. 

Now that we have the basic definitions down, we’ll look at how a court determines the rights and duties of parents and the periods of visitation to the child.  From the get go, it’s important to understand that the best interests of the child is the most important factor the court looks at when deciding issues of conservatorship, possession and access.  To establish a child’s best interests, parents usually are required to present evidence showing who can better serve the child’s interests. 

Approximately 30 years ago, the Texas Supreme Court identified a non-exclusive list of factors the court will consider in determining what is in the child’s best interests.  These factors are commonly called the “Holly Factors” because of the name of the case they were identified in.  Generally, the Holly Factors fall into three categories: (1) caring for the child; (2) maintaining family relationships; and (3) parenting skills. 

In the next post, I’ll write about the specific items courts consider in assessing the three main Holly Factors.

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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

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