Legal Insight from Barrows Firm: Updated Child Custody Law

New Child Custody Law Amending Beginning and Ending of Possession for More Equal Possession Time

With the fall season upon us and holidays in the not-so-distant future (as well as Thanksgiving and winter break for Southlake students), a recent update to an important child custody law will affect children of divorce across Texas. Equal parenting time and 50/50 custody orders are the goals of legislation affecting the Texas Family Code in the recent 87th legislative session in Austin, and the updated law provides for closer to an equal possession order giving more parenting time to possessory conservator parents. Republican lawmakers were presented with testimony regarding the best interests of children and the goal of creating closer to equal parenting time to foster important close parent-child relationships with mothers and fathers after divorce in Texas.

The new law updates the alternative beginning and ending times that the non-primary parent, also called the possessory conservator, has with the child, as stated in the Expanded Standard Possession Order. Now parents living 50 or fewer miles from the primary residence of the child get at least 46 percent of possession time in the new Expanded Standard Possession Order schedule for overnights, weekends, and alternating holidays. Parents in custody suits can make their agreement to adopt a standard plan or make their own. When the Judge must order a custody arrangement, they can apply the updated Expanded Standard Possession Order or, if in the best interest of the child, the judge can order any alternative custody schedule. The change in the law was effective September 1, 2021, and it does not itself qualify as a basis to file a modification case.

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Changes Apply to Possessory Conservator Parents Who Live 50 or Fewer Miles from the Primary Residence of the Child

With Southlake being centrally located in North Texas, it is more feasible than in the past to transport children among parents within 50 miles of one another, and with so many new lanes of interstate and toll roads, people are moving further out from cities and working more hours from home. That said, the possessory conservator parent still must get the children to and from school, friends, church, and whatever extracurricular activities they have going on when they are with the possessory conservator parent. This for some means driving up to 50 miles each way to school and activities. Some people can make it work, but not everyone. If the parent has flexible work schedule and location options, this situation can be feasible.

More frequently a possessory conservator parent with visitation time chooses to live closer to the primary parent with whom the child primarily resides. This makes taking children to school much easier. Everyone can find a balanced work and family schedule and situation that works so that parents and their children have the greatest amount of quality time together.

New Changes Affect the Expanded Standard Possession Order

Child custody cases pending as of September 1, 2021, and filed thereafter, are subject to the new closer to equal parenting time provisions in S.B. 1936. To understand the options, first note that there is a Standard Possession Order (SPO) which can be increased to an Expanded Standard Possession Order (ESPO) essentially giving the possessory conservator more parenting time with the child. These possession orders specify exactly when each parent has possession and alternating holidays.

Possession order schedules are designed to create stable schedules for children during the school year, minimally disrupting children during the week so they can focus on school. The parties in a child custody suit have the option of agreeing with one another about one of the possession orders or they can create their custom possession schedule. When the parents are not able to agree, judges use their discretion in ordering an appropriate possession schedule such as the new ESPO, with close to equal parenting time.

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Increased Possession Time for the Possessory Conservator

With the change in the law, the possessory conservator will have more visitation time with their kids when they live up to 50 miles from the child’s primary residence. The new law gives the possessory conservator visitation time of 46 percent with the additional overnight visitation.

Courts Have Discretion to Decline Applying the “New” Expanded Standard Possession Order and Parties in a Child Custody Suit Can Opt-Out

Texas district court judges presiding over Texas family law and custody cases have the discretion to override the new law if they believe the additional time is not in the best interests of the child. The travel times between parents’ homes are an example of something that could adversely affect the child’s schedule. Access to vehicles and public transportation could be another factor in opting out of the new law. And if the possessory conservator parent did not have regular time with the child before the suit, and is more of a stranger, that can be good cause for a judge not to order a nearly 50/50 custody arrangement.

The New Possession and Access Rules Are Not Alone Sufficient to File a Modification Suit

In custody and visitation cases that are already settled and there is a final order regarding conservatorship and possession and access, a new modification suit would be necessary to change that order. Modification suits are new actions and to have the standing to be granted a custody modification, the parent bringing the suit must prove a material and substantial change in circumstances. This new change in the number of visitation overnights in the new Expanded Standard Possession Order is not itself a basis to file a modification suit.