By Earl N Jackson
Dallas, Texas
Board Certified
Texas Board of Legal Specialization
214-369-7100
“Visitation.”
It is not visitation, it is Court Ordered possession and access to a child for and by both parties.
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. Before deviating from the Texas Standard Possession Order, talk to your lawyer. The standard order is well understood by the bar and is easily enforced. An example of a problematic order, “each parent shall have every other weekend.” Okay, who got the “first” weekend and when did the calculation start? Or, “each parent shall have every other weekend with the Mother having the first weekend commencing in January 2014, the Father the second weekend and so forth.” Okay, it is now 2018 – who gets what weekend in 2018? We have to calculate all the way back to 2014. See the problem.
There are numerous other possession schedules that have been drafted to address specific employment visitation problems. An example would be a police officer’s visitation schedule or fireman schedule. There is also what is known as the 2-2-3 schedule which is often done for small children. In addition, there is the week on and week off schedule usually commencing on Friday at 6:00 p.m. through the next Friday at 6:00 p.m. Although at one time highly disfavored by the Courts, it is becoming more and more popular, especially for parents who have demonstrated an ability to co-parent together.
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.
Note the “right of possession” is a command from the court which states a parent has the right of possession to the exclusion of the other parent. In an enforcement proceeding three actions for contempt are available for each denial of possession:
- The primary failed to deliver the child to the other parent. A party is ordered to deliver the child(ren). This may be at the primary’s front door, a McDonalds, or some other location. This provision of a divorce decree is found under “General Terms and Conditions . . . 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.”
- The primary denied possession. The non-primary (usually Dad) showed up at the other parent’s home to take possession – to start on the parent’s weekend possession. The children didn’t appear and the primary kept possession over the weekend (by example). This is denying possession and is contemptable.
- The primary “had possession.” A close kin to denying possession, by having possession the primary is again violating a court order by having possession while the other parent is entitled to possession.
So, each time a parent withholds a child from the other parent, violating the court order, the denying parent is potentially violating the Court Order by three counts as set out above. Court’s take their orders very seriously – suburbon counties, especially. On a finding of contempt, an award of attorney’s fees is mandatory. The parent violating the Court Order is subject to jail and/or fines.
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.
TEXAS 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. [See this language, this means the parties can agree to switch weekends or trade days, it means they can agree to do something that might work for them better than the standard order. Caveat, if you do enter into a permanent or semi-permanent change of the possession schedule, example you permanently switched weekends, then you might find yourself with a motion to modify to make that the permanent court 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 [This language is part of what is called the expanded Standard Possession Schedule, i.e., from the time school lets out to the time school resumes after 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 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.