This is the second installment in this series. We previously discussed the allocation of parental rights, in Part 1. If you have not read that one already, or if you have, but need a refresher, please check-out that post.
Today, we will discuss the ways that possession of a child may be allocated between parents. The presumption is that one parent should have “Standard Possession” of the child(ren) who are 3 years of age, or older; and, that the other parent should have possession during the balance of the time. Many of us are already familiar with the concept of parents sharing weekend possession, with Mom having one weekend, and Dad having the next one. Similarly, it is fairly common for folks to be familiar with the idea of splitting the Summer between the two parents. What may be unknown is the allocation of time on each child’s birthday; the allocation of holidays and Spring Break. All of those are covered by the Standard Possession Order.
In my practice of law since 1989, my firm has handled many divorce cases, and have spoken with various mental health experts. Between our experience, as a law firm handling divorce cases, as well as what we have discovered from our study of the subject with relationship experts, we have learned some common causes of divorce. Based on those experiences, we offer the following observations.
Once upon a time, divorce was rare and frowned-upon by American society. During the Twentieth Century, however, several societal changes occurred, which caused the divorce rate to spike. It became one of the highest in the world.[i] Among these changes were women’s ability to support themselves financially; an increased mobility of society, where the members of extended families lived apart from one another; and, the dawning of the Sexual Revolution, which led to a change of view about previously-married people (especially women).
A common question that we get is whether it is possible for a client to get “full custody.” While “full custody” means different things to different people, it usually boils down to one of two things: either having the rights to make all parenting decisions for a child; or, having possession of a child, all of the time. We will discuss the first of those today. We will discuss possession issues later.
Initially, it is worth noting that the Texas Family Code, does not use the word “custody.” Rather, the word “Conservatorship” is used. “Conservatorship” is a Trust Law term, which denotes having an obligation to take a higher duty of care of something or someone, rather than merely taking possession of the something or someone.
Since at least 1983, Texas child custody cases (or “Suits Affecting the Parent-Child Relationship,” or “SAPCR”) have been governed by a presumption in the Texas Family Code, providing that a “Standard Possession Order” should, typically, be entered by the court. The terms of that order have changed several times since then, with the most recent changes going into effect on September 1, 2021. These most recent changes are significant for most parents who have have a court order related to their children . Let’s take at look at those changes.
As the children of separated parents become older, they might express that they do not want to spend time with one of their parents. This, of course, causes trouble for the relationship between the child and parent, as well as the relationship between the parents. In fact, if the issue remains unresolved, then either a parent and child may become estranged from one another, or litigation may occur. And so, the situation should be taken seriously, and properly addressed.
The first step is to have a discussion with the child about the reasons for his or her not wanting to spend time with the parent. For example, Is the child bored? Does the child miss friends or activities while spending time with one parent? Is there some problem with the relationship between this parent and child? Getting to the root of the problem let’s us see what needs to be addressed.