Possession is by an Order -
the Texas Standard
Possession Order.
It is not Visitation.
By
Earl N Jackson
The Texas Standard Possession
Order
"Visitation." It is not visitation, it is Court Ordered possession and
access to a child for and by both parties. Each party has a right of
possession. When one party has a right of possession, the other party
does not.
The Texas Standard Possession Order is a
pretty fair deal. Not quite 50/50, but all the judges know what it
means and how it is implemented. In short, the Texas Standard
Possession Order is as follows (more detail below):
-
The primary (the person with the right
to designate the residency of the child) will have possession on the 2nd
and 4th weekend of the month.
-
The nonprimary will have possession on
the 1st, 3rd and 5th weekend of the month.
-
The nonprimary will have possession
every Thursday night. The primary will have possession every
Monday, Tuesday and Wednesday night.
-
Holidays are split 50/50. In even
years the primary will have Thanksgiving. The nonprimary will have
the first part of Christmas inclusive of Christmas Day going through the
28th of December. The primary will have the second part of
Christmas commencing at 12 noon on the 28th and going through the day
before school commences in the new year. The following Spring
Break will go to the primary such that the following Thanksgiving goes
to the nonprimary. Thus the holidays are split 50/50 and flip -
flop back and forth between the parties.
-
Summer Possession - the nonprimary will
get 30 days in the summer if they live within 100 miles of the primary.
Outside of 100 miles, they get 42 days. The primary will get
essentially three weeks in the summer as long as it does not interfere
with the nonprimary's summer possession.
-
Mother's Day - the mother of the child
gets the full Mother's Day Weekend.
-
Father's Day - the father of the chidl
gets the full Father's Day Weekend.
-
Child's Birthday - the parent not in
possession will get from 6:00 p.m. - 8:00 p.m. on the child 's birthday
together with the Child's siblings.
-
Failure to follow a possession schedule
will lead to a contempt filing. Some judges will fine the
offending party $500.00 per violation of the order, put that person in
jail for a period of time and award attorney's fees against that party.
In one of my cases, the fine was $9500.00, one week in jail and
$15,000.00 in attorney's fees awarded. My client, the father, was
seeking contempt and the mother is the one that paid the price.
The Texas Legislature
promulgated the Standard Possession Order as a method to bring some
standardization to possession and access to a child(ren); to recognize the
needs of the child during the school year; and to allow both parents to have
close to equal possession and access to a child.
The "primary" is the person with
the right to establish the residence of the child subject to, if requested,
a geographic restriction and is the person who has the right to receive and
give receipt for the payment of child support. Sometimes this person
is also the "sole managing conservator." The "nonprimary" or "nonprimary/possessory
conservator" is the person who does not have the right to establish the
residence of the child or to receive child support.
In summary, the order states:
The nonprimary or nonprimary/possessory
conservator shall have possession of the child on the first, third, and
fifth weekend per month. The possession shall commence at this person's
option either (a) immediately upon release from school or (b) at 6:00 p.m.
The possession shall end either at (a) 6:00 p.m. Sunday or (b) at the time
school commences on Monday. This weekend possession can also be extended by
holiday.
The nonprimary or nonprimary/possessory
conservator shall have possession of the child on each Thursday of the month
during the school year. Again, the nonprimary has the choice of picking up
the child from school or picking up the child at 6:00 p.m. He or she also
has the choice to return the child at 8:00 p.m. on Thursday night or return
the child to school on Friday morning.
Holidays - are split 50/50
between conservators of the child. One year Mom gets Thanksgiving. The next
year Dad gets Thanksgiving. Christmas holidays are split as well. One
year, Dad has the front side of Christmas and the next Mom does.
Springbreak is also split alternating between parents, unless the nonprimary
lives 100 miles or greater from the primary. In that event, the nonprimary
gets every Spring Break.
Summer Vacation - the nonprimary
will get 30 days in the summer unless he or she lives at a distance of
greater than 100 miles from the primary. In that event, the nonprimary gets
42 days.
The provisions of the Texas
Standard Possession Order can be changed by agreement of the parties, or, by
the Court if the Court decides it is not in the best interest of the child.
The language of the order is set
out below. The blanks indicate that choices can be made at that
juncture in the order.
STANDARD POSSESSION
ORDER adapted from
TEXAS FAMILY CODE,
SECTIONS 153.311 THROUGH 153.317
Policy.
It is the policy of this state to encourage frequent contact between a child
and each parent for periods of possession that optimize the development of a
close and continuing relationship between each parent and child. It is
preferable for all children in a family to be together during periods of
possession.
School.
The term school means the primary or secondary school in which the child is
enrolled, or if the child is not enrolled in a primary or secondary school,
the public school district in which the child primarily resides. Some also
interpret this to include alternative schooling and preschool.
Child.
The term child shall refer to the child or children of the parties and shall
include the plural form wherever appropriate to the context.
Standard
Possession Order
IT IS
ORDERED AND DECREED that the parties shall have possession of the child at
any and all times mutually agreed to in advance by the parties and, in the
absence of mutual agreement, shall have possession of the child under the
specified terms set out in this Standard Possession Order.
A. PARENTS
WHO RESIDE 100 MILES OR LESS APART
(a) If the
nonprimary/possessory conservator resides 100 miles or less from the primary
residence of the child, the nonprimary/possessory conservator shall have the
right to possession of the child as follows:
(1)
Weekends. On weekends beginning: (CHOOSE ONE)
______ At
6:00 o'clock p.m. on the first, third and fifth Friday of each month;
______ If
the child is enrolled in school, at the time the child's school is regularly
dismissed on the first, third and fifth Friday of each month;
________ If
the child is enrolled in school, at_______ o'clock____.m. (specify time
elected between the time the child's school is regularly dismissed and 6:00
o'clock p.m.) on the first, third and fifth Friday of each month;
and ending:
(CHOOSE ONE)
______ At
6:00 o'clock p.m. on the following Sunday.
______ If
the child is enrolled in school, at the time the child's school resumes
after the weekend.
(2) Weekend
Possession Extended By Holiday. If a weekend period of possession of the
nonprimary/possessory conservator coincides with a school holiday during the
regular school term, or with a federal, state or local holiday during the
summer months in which school is not in session, the weekend possession
shall begin: (CHECK ONE)
_______ At
6:00 o'clock p.m. Thursday for a Friday holiday or school holiday;
_______ At
the time the child's school is regularly dismissed for a Friday holiday or
school holiday;
_______ If
the child is enrolled in school, at_______ o'clock____.m. (specify time
elected between the time the child's school is regularly dismissed and 6:00
o'clock p.m.) on the day that the child's school is regularly dismissed for
a Friday holiday or school holiday;
and ending:
(CHECK ONE)
_______ At
6:00 o'clock p.m. on a Monday holiday or school holiday
_______ If
the child is enrolled in school, at the time the child's school resumes
after a Monday holiday or school holiday.
(3)
Thursdays. On Thursdays of each week during the regular school term:
(CHECK ONE)
________
Beginning at 6:00 o'clock p.m. and ending at 8:00 o'clock p.m.;
________ At
the time the child's school is regularly dismissed; and ending at the time
the child's school resumes on Friday morning,
(unless the
court finds that it is not in the child's best interest)
(b) The
following provisions govern possession of the child for vacations and
certain holidays and supersede conflicting weekend or Thursday periods of
possession. The nonprimary/possessory conservator and the managing
conservator shall have rights of possession of the child as follows:
(1) Spring
Vacation. The nonprimary/possessory conservator shall have possession of the
child in even-numbered years beginning: (CHOOSE ONE)
________ At
6:00 o'clock p.m. on the day the child is dismissed from school for the
school's spring vacation;
_________ If
the child is enrolled in school, at the time the child's school is regularly
dismissed for the school's spring vacation;
________ If
the child is enrolled in school, at _______ o'clock _____.m. (specify time
elected between the time the child's school is regularly dismissed and 6:00
o'clock p.m.) on the day the child is dismissed from school for the school's
spring vacation;
and ending:
(CHOOSE ONE)
________ At
6:00 o'clock p.m. on the day before school resumes after that vacation.
________ If
the child is enrolled in school, at the time the child's school resumes
after that vacation.
The managing
conservator shall have possession for the same period in odd-numbered years.
(2) Summer.
(A) If the
nonprimary/possessory conservator gives the managing conservator written
notice by April 1 of each year specifying an extended period or periods of
summer possession, the nonprimary/possessory conservator shall have
possession of the child for thirty (30) days beginning not earlier than the
day after the child's school is dismissed for the summer vacation and ending
not later than seven (7) days before school resumes at the end of the summer
vacation, to be exercised in not more than two (2) separate periods of at
least seven (7) consecutive days each.
(B) If the
nonprimary/possessory conservator does not give the managing conservator
written notice by April 1 of each year specifying an extended period or
periods of summer possession, the nonprimary/possessory conservator shall
have possession of the child for thirty (30) consecutive days beginning at
6:00 o'clock p.m. on July 1 and ending at 6:00 o'clock p.m. on July 31.
(C) If the
managing conservator gives the nonprimary/possessory conservator written
notice by June 1 of each year, the managing conservator shall have
possession of the child on any one weekend beginning Friday at 6:00 o'clock
p.m. and ending at 6:00 o'clock p.m. on the following Sunday during any one
period of possession by the nonprimary/possessory conservator under
Subdivisions (b)(1) or (b)(2), provided that the managing conservator picks
up the child from the nonprimary/possessory conservator and returns the
child to that same place.
(D) If the
managing conservator gives the nonprimary/possessory conservator written
notice by April 15 of each year or gives the nonprimary/possessory
conservator 14 days' written notice on or after April 16 of each year, the
managing conservator may designate one weekend beginning not earlier than
the day after the child's school is dismissed for the summer vacation and
ending not later than seven (7) days before school resumes at the end of the
summer vacation, during which an otherwise scheduled weekend period of
possession by the nonprimary/possessory conservator will not take place,
provided that the weekend so designated does not interfere with the
nonprimary/possessory conservator's period or periods of extended summer
possession or with Father's Day weekend if the nonprimary/possessory
conservator is the father of the child.
PARENTS WHO
RESIDE OVER 100 MILES APART
If the
nonprimary/possessory conservator resides more than 100 miles from the
residence of the child, the nonprimary/possessory conservator shall have the
right to possession of the child as follows:
Weekends. On
weekends beginning: (CHOOSE ONE)
______ At
6:00 o'clock p.m. on the first, third, and fifth Friday of each month;
______ If
the child is enrolled in school, at the time the child's school is regularly
dismissed on the first, third and fifth Friday of each month;
______ If
the child is enrolled in school, at _______ o'clock____.m. (specify time
elected between the time the child's school is regularly dismissed and 6:00
o'clock p.m.) on the first, third and fifth Friday of each month;
and ending:
(CHOOSE ONE)
_____ At
6:00 o'clock p.m. on the following Sunday.
______ If
the child is enrolled in school, at the time the child's school resumes
after the weekend.
(b)
Alternative Weekend Possession. In lieu of the foregoing, the nonprimary/possessory
conservator shall have the right to possession of the child not more than
one weekend per month of the nonprimary/possessory conservator's choice
beginning: (CHECK ONE)
_______ At
6:00 o'clock p.m. on the day school recesses for the weekend;
_______ If
the child is enrolled in school, at the time the child's school is regularly
dismissed for the weekend;
_______ If
the child is enrolled in school, at _______ o'clock _____.m. (specify time
elected between the time the child's school is regularly dismissed and 6:00
o'clock p.m.) on the day school recesses for the weekend; and ending: (CHECK
ONE)
_______ At
6:00 o'clock p.m. on the day before school resumes after the weekend.
________ If
the child is enrolled in school, at the time the child's school resumes
after the weekend. The nonprimary/possessory conservator may elect an option
for this alternative period of possession by giving written notice to the
managing conservator within ninety (90) days after the parties begin to
reside more than 100 miles apart. If the nonprimary/possessory conservator
makes this election, the nonprimary/possessory conservator shall give the
managing conservator fourteen (14) days' written or telephonic notice
preceding a designated weekend.
(c) Weekend
Possession Extended By Holiday. If a weekend period of possession of the
nonprimary/possessory conservator coincides with a school holiday during the
regular school term, or with a federal, state or local holiday during the
summer months in which school is not in session, the weekend possession
shall begin: (CHOOSE ONE)
_______ At
6:00 o'clock p.m. Thursday for a Friday holiday or school holiday;
_______ At
the time the child's school is regularly dismissed for a Friday holiday or
school holiday;
_______ If
the child is enrolled in school, at _______ o'clock _____.m. (specify time
elected between the time the child's school is regularly dismissed and 6:00
o'clock p.m.) on the day that the child's school is regularly dismissed for
a Friday holiday or school holiday;
and ending:
(CHOOSE ONE)
_______ At
6:00 o'clock p.m. on a Monday holiday or school holiday;
_______ If
the child is enrolled in school, at the time the child's school resumes
after a Monday holiday or school holiday.
(d) Spring
Vacation. Each year beginning: (CHOOSE ONE)
________ At
6:00 o'clock p.m. on the day the child is dismissed from school for the
school's spring vacation;
_________ If
the child is enrolled in school, at the time the child's school is regularly
dismissed for the school's spring vacation;
________ If
the child is enrolled in school, at _________ o'clock _____.m. (specify time
elected between the time the child's school is regularly dismissed and 6:00
o'clock p.m. on the day the child is dismissed from school for the school's
spring vacation;
and ending:
(CH00SE ONE)
________ At
6:00 o'clock p.m. on the day before school resumes after that vacation.
________ If
the child is enrolled in school, at the time the child's school resumes
after that vacation.
(e) Summer.
(1) If the
nonprimary/possessory conservator gives the managing conservator written
notice by April 1 of each year specifying an extended period or periods of
summer possession, the nonprimary/possessory conservator shall have
possession of the child for 42 days beginning not earlier than the day after
the child's school is dismissed for the summer vacation and ending not later
than seven (7) days before school resumes at the end of the summer vacation,
to be exercised in not more than two (2) separate periods of at least seven
(7) consecutive days each.
(2) If the
nonprimary/possessory conservator does not give the managing conservator
written notice by April 1 of each year specifying an extended period or
periods of summer possession, the nonprimary/possessory conservator shall
have possession of the child for 42 consecutive days beginning at 6:00
o'clock p.m. on June 15 and ending at 6:00 o'clock p.m. on July 27.
(3) If the
managing conservator gives the nonprimary/possessory conservator written
notice by April 15 of each year, the managing conservator shall have
possession of the child on any one weekend beginning Friday at 6:00 o'clock
p.m. and ending at 6:00 o'clock p.m. on the following Sunday during any one
period of possession by the nonprimary/possessory conservator under
Subdivisions (5)(a) or (5)(b), provided that if a period of possession by
the nonprimary/possessory conservator exceeds thirty (30) days, the managing
conservator may have possession of the child under the terms of this
subdivision on any two (2) nonconsecutive weekends during that time period,
and further provided that the managing conservator picks up the child from
the nonprimary/possessory conservator and returns the child to that same
place.
If the
managing conservator gives the nonprimary/possessory conservator written
notice by April 15 of each year, the managing conservator may designate 21
days beginning not earlier than the day after the child's school is
dismissed for the summer vacation and ending not later than seven (7) days
before school resumes at the end of the summer vacation, to be exercised in
not more than two (2) separate periods of at least seven (7) consecutive
days each, during which the nonprimary/possessory conservator may not have
possession of the child, provided that the period or periods so designated
do not interfere with the nonprimary/possessory conservator's period or
periods of extended summer possession or with Father's Day weekend if the
nonprimary/possessory conservator is the father of the child.
C. HOLIDAY
POSSESSION
The
following provisions govern possession of the child for certain specific
holidays and supersede conflicting weekend or Wednesday periods of
possession without regard to the instance the parents reside apart. The
nonprimary/possessory conservator and managing conservator shall have rights
of possession of the child as follows:
(a)
Christmas.
(1) The
nonprimary/possessory conservator shall have possession of the child in
even-numbered years beginning at 6:00 o'clock p.m. on the day the child is
dismissed from school for the Christmas vacation and ending at noon on
December 26. The managing conservator shall have possession for the same
period in odd-numbered years.
(2) The
nonprimary/possessory conservator shall have possession of the child in
odd-numbered years beginning at noon on December 26 and ending: (CHECK ONE)
________ At
6:00 o'clock p.m. on the day before school resumes after that vacation.
_________ If
the child is enrolled in school, at the time the child's school resumes
after that vacation.
The managing
conservator shall have possession for the same period in even-numbered
years.
(b)
Thanksgiving. The nonprimary/possessory conservator shall have
possession of the child in odd-numbered years beginning: (CHECK ONE)
________ At
6:00 o'clock p.m. on the day the child is dismissed from school before
Thanksgiving;
________ If
the child is enrolled in school, at the time the child's school is regularly
dismissed for the Thanksgiving vacation;
________ If
the child is enrolled in school, at _______ o'clock _____.m. (specify time
elected between the time the child's school is regularly dismissed and 6:00
o'clock p.m.) on the day the child is dismissed from school before
Thanksgiving;
and ending:
(CHECK ONE)
________ At
6:00 o'clock p.m. on the following Sunday.
_________ If
the child is enrolled in school, at the time the child's school resumes
after that vacation.
The managing
conservator shall have possession for the same period in even-numbered
years.
(c)
Child's Birthday. The parent not otherwise entitled under this
standard order to present possession of a child on the child's birthday
shall have possession of the child beginning at 6:00 o'clock p.m. and ending
at 8:00 o'clock p.m. on that day, provided that said parent picks up the
child from the residence of the conservator entitled to possession and
returns the child to that same place.
(d)
Father's Day Weekend. If a conservator, the father shall have
possession of the child beginning at 6:00 o'clock p.m. on the Friday
preceding Father's Day and ending on Father's Day at 6:00 o'clock p.m.,
provided that, if he is not otherwise entitled under this standard order to
present possession of the child, he picks up the child from the residence of
the conservator entitled to possession and returns the child to that same
place.
(e)
Mother's Day Weekend. If a conservator, the mother shall have
possession of the child beginning at 6:00 o'clock p.m. on the Friday
preceding Mother's Day and ending on Mother's Day at 6:00 o'clock p.m.,
provided that, if she is not otherwise entitled under this standard order to
present possession of the child, she picks up the child from the residence
of the conservator entitled to possession and returns the child to that same
place.
D. GENERAL
TERMS AND CONDITIONS
Without
regard to the distance between the residence of the parent and the child:
(a) The
managing conservator shall surrender the child to the nonprimary/possessory
conservator at the beginning of each period of the nonprimary/possessory
conservator's possession at the residence of the managing conservator.
(b) If the
nonprimary/possessory conservator elects to begin a period of possession at
the time the child's school is regularly dismissed, the managing conservator
shall surrender the child to the nonprimary/possessory conservator at the
beginning of each such period of possession at the school in which the child
is enrolled.
(c) The
nonprimary/possessory conservator shall: (CHECK ONE)
_______
Surrender the child to the managing conservator at the end of each period of
possession at the residence of the nonprimary/possessory conservator.
________
Return the child to the residence of the managing conservator at the end of
each period of possession. The nonprimary/possessory conservator shall
surrender the child to the managing conservator at the end of each period of
possession at the residence of the nonprimary/possessory conservator if (1)
the nonprimary/possessory conservator's county of residence remains the same
after the rendition of this order, and the managing conservator's county of
residence changes, effective on the date of the change of domicile by the
managing conservator, or (2) the nonprimary/possessory conservator and
managing conservator lived in the same residence at any time during a
six-month period preceding the date on which a suit for dissolution of the
marriage was filed and the nonprimary/possessory conservator's county of
residence remains the same and the managing conservator's county of
residence changes after they no longer live in the same residence, effective
on the date the order is rendered.
(d) If the
nonprimary/possessory conservator elects to end a period of possession at
the time the child's school resumes, the nonprimary/possessory conservator
shall surrender the child to the managing conservator at the end of each
such period of possession at the school in which the child is enrolled.
(e) Each
conservator shall return with the child the personal effects that the child
brought at the beginning of the period of possession.
(f) Either
parent may designate any competent adult to pick up and return the child, as
applicable. A parent or a designated competent adult shall be present when
the child is picked up or returned.
(g) A parent
shall give notice to the person in possession of the child on each occasion
that the parent will be unable to exercise that parent's right of possession
for any specified period. Repeated failure of a parent to give notice of an
inability to exercise nonprimary/possessory rights may be considered as a
factor in a modification of those nonprimary/possessory rights.
(h) Written
notice shall be deemed to have been timely made if received or postmarked
before or at the time that notice is due.
(i) If a
conservator's time of possession of a child ends at the time school resumes
and for any reason the child is not or will not be returned to school, the
conservator in possession of the child shall immediately notify the school
and the other conservator that the child will not be or has not been
returned to school.
This is the
end of the Standard possession order.
JACKSON : WOOD
Dallas Divorce Lawyers
214-369-7100
E-Mail Dallas Divorce Lawyer
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