Saturday, January 21, 2012

Deviation from Standard Possession Order

A frequent question is whether parents can deviate from the standard possession order. According to the editors of Sampson & Tindall's Texas Family Code Annotated, "The standard possession order has become a way of life for family law practitioners." It has also become a way of life for many families in Texas. But are we trapped by the Standard Possession Order? No.

Two Ways to Deviate from the Standard Possession Order

While the Standard Possession Order is found in most divorce decrees, parents are allowed to deviate from the Standard Possession Order in two important ways. First, parents can agree to put different terms in their final order (divorce decree or final order in suit affecting the parent-child relationship (SAPCR)) and second by agreement as time goes on.

1. Final Order

The state legislature has instructed judges to impose the Standard Possession Order unless the party seeking a different possession order can show by clear and convincing evidence that another arrangement would be in the child's best interest (Texas Family Code § 153.252), the Standard Possession Order is just unworkable, perhaps due to the parties' work schedules (§ 153.253), the child is less than 3 years old (§ 153.254), there is a recent history of family violence (§ 153.004), or upon the agreement of the parties (§§ 153.007, 153.255).

That last reference (§ 153.255) gives parents the power to be as creative as they want to be in determining how to share time with their children. That section of the Texas Family Code tells parents that if they want a week-on/week-off possession schedule or a 2-2-3 possession schedule, or any of the other myriad schedules attorneys, counselors, and parents have invented, they are free to put that in their final orders and the court has the power to approve those agreements by adopting them as the final order of the court.

If parents know that the standard possession order will not work for them, they should work hard to craft an agreement that will work. The reason for this is explained below.

2. By Agreement from Time to Time

Every possession order must contain a provision that tells parents that they can do whatever they want to do with regard to sharing time with the children as long as they both agree to what that is. When the parents are not able to agree, then the possession order found in the court's order kicks in. (see Texas Family Code § 153.311)

That means that even if a standard possession order was included in the final decree of divorce or final order in a SAPCR, the parents can deviate from that order any time they want--they just have to be in agreement. Parents do not need the court's permission to deviate from the standard possession order nor do they have to notify anyone. This can be done through a simple email exchange such as this:

DAD: I have to travel out of town on the first weekend of next month, so I won't be able to pick up the children. Is it OK if we switch weekends and I take them the second weekend?

MOM: Yes, that's fine.

(Wouldn't it be great if all communication between parents were this smooth?)

Plan Ahead

One might think, "With this kind of flexibility built into possession orders, why worry about it too much? If the standard possession order is not going to work, we can just deviate from it!"

True in theory, but not always in practice.

Often when parents can't agree on what to do with regard to sharing time with the children, one or the other gets frustrated and says, "Forget it. We're just going to follow the order." Oops! If the parties knew that a standard possession order would not work because one parent works every weekend, but nonetheless adopted a standard possession order in their final orders, they will have created a difficult problem. If the parents adopted a possession order that won't work, counting on the built in flexibility of § 153.311, they don't have much choice but to go back to court if they can't agree on how to modify the child-sharing schedule.

LESSON: If you know the standard possession will not work, do not just blindly include it in your final order if you can get the other party to agree to something else. If you can't get the other party to agree to a workable order, don't be afraid to go to trial and explain to the judge why the standard possession order won't work for you.


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