Grandparent Rights in Texas

In Texas, grandparents’ rights encompass visitation and custody decisions, with limited ability to seek conservatorship of children. Grandparents can seek access to grandchildren, but court intervention is regulated, aiming to protect the grandparent-grandchild relationship. Seeking legal counsel is crucial for understanding and protecting these rights in complex family law cases.

Grandparents’ rights in Texas can be a complex and sensitive issue within the realm of family law. It encompasses various aspects such as visitation rights and custody decisions.


Whether you are a concerned grandparent seeking options or a parent whose parenting abilities are being questioned, it can be crucial to seek legal counsel. Having competent legal representation can be the difference that allows you to truly understanding your rights to your child or grandchildren and how to protect them.

Do Grandparents Have Any Legal Rights in Texas?

When discussing grandparents’ rights in Texas, there are generally two types of cases involved. The first type involves grandparents seeking to be named as conservators of the children, potentially obtaining full or substantial possession of them. The second type pertains to grandparents seeking access to the children when there is a denial or threat of denial.

How Hard is it for Grandparents to Get Custody in Texas?

However, it is important to note that grandparents’ ability to seek managing conservatorship of children in place of the parents is extremely limited in Texas. The likelihood of winning such a case heavily depends on the specific facts of each situation, and the right to even bring the action is highly regulated. Essentially, the intention behind the law is to prevent grandparents who believe they could provide better care than the parents from interfering in the lives of the parents and grandchildren, except in rare circumstances.

On the other hand, grandparent access to grandchildren is a more commonly recognized concept. The law aims to protect the grandparent-grandchild relationship in cases where grandparents have been cut off from accessing their grandchildren due to a mean-spirited, vindictive, or neglectful “surviving” spouse. It is important to understand that this law is not limited to situations where the grandparents’ child has passed away but also applies in cases where a parent is incarcerated. In such circumstances, grandparents can seek court intervention to safeguard their relationship with their grandchildren.

However, it is worth noting that courts often believe that a non-incarcerated, living parent is capable of adequately protecting the access rights of the grandparents and may deem court intervention unnecessary. In other words, some courts may – at least as a first step – direct that if a grandparent feels they are not getting enough time with their grandchild, they should address the matter directly with the child’s parent.

Can Grandparents Fight for Visitation in Texas?

Understanding the intricacies of grandparents’ rights in Texas and the necessary legal processes to pursue such actions can be complex. It is highly recommended to seek the assistance of a competent attorney that understands grandparents’ rights cases.

How Does Social Security Work After Divorce?

Divorce is a life-altering event that often brings about significant changes, including financial implications. One crucial consideration for individuals going through a divorce is how their Social Security benefits may be affected.


In this blog post, we will explore the critical aspects of how Social Security works after divorce, including eligibility, spousal benefits, and strategies to maximize your benefits.This is not finacial advice. This is general information.

Understanding Social Security Benefits After Divorce

After a divorce, individuals may be entitled to receive Social Security benefits based on their own work record or their former spouse’s work record. To be eligible for benefits based on your ex-spouse’s record, you must meet specific criteria:

  1. Duration of Marriage: You must have been married for at least ten years before the divorce to be eligible for benefits based on your ex-spouse’s record.
  2. Age Requirement: You must be at least 62 years old to claim benefits. However, if you claim before your full retirement age (FRA), your benefits may be reduced.
  3. Marital Status: You must be unmarried to claim benefits based on your ex-spouse’s record. If you remarry, you may only gain eligibility if certain conditions are met.

Spousal Benefits and Eligibility

If you meet the eligibility criteria, you may be entitled to claim spousal benefits based on your ex-spouse’s work record. These benefits can be up to 50% of your ex-spouse’s full retirement benefit amount. Here are some essential points to consider:

  1. Qualifying for Spousal Benefits: You must be at least 62 years old and your ex-spouse must be eligible for or already receiving Social Security benefits. Additionally, your own benefit amount must be less than the amount you would receive based on your ex-spouse’s record.
  2. Filing for Benefits: To claim spousal benefits, you will need to provide your marriage and divorce certificates, as well as your ex-spouse’s Social Security number and other pertinent information. It is crucial to contact the Social Security Administration (SSA) to initiate the process and ensure all required documentation is submitted.
  3. Impact on Ex-Spouse’s Benefit: Claiming spousal benefits does not affect your ex-spouse’s benefit amount or their current spouse’s benefits.

Maximizing Social Security Benefits

To maximize your Social Security benefits after divorce, consider the following strategies:

  1. Delaying Claiming: If you can afford to wait, delaying your claim until your full retirement age or beyond can increase your benefit amount. For every year you delay, your benefit may grow by approximately 8%.
  2. Coordinating Benefits: If you are eligible for benefits based on both your own work record and your ex-spouse’s record, you can choose which benefit to claim first. By evaluating the potential benefit amounts for each option, you can make an informed decision.
  3. Seeking Professional Advice: Social Security rules can be complex, and each individual’s situation is unique. Consulting with a financial advisor or Social Security specialist can help you navigate the complexities and optimize your benefits.

Conclusion

Divorce brings about significant changes, and understanding how Social Security benefits work after divorce is crucial for financial planning. By familiarizing yourself with the eligibility criteria, spousal benefits, and strategies to maximize your benefits, you can make informed decisions and secure your financial well-being. Remember, seeking professional advice is always a wise choice to ensure you make the most of the benefits you are entitled to.

How to Obtain a Geographic Restriction in a Texas Custody Case

In a custody case, it is common for parents to have concerns about the geographic location where their child will reside. A geographic restriction, also known as a residency restriction, is a court order that limits the child’s primary residence to a specific geographic area. This article will guide you through the process of obtaining a geographic restriction in a Texas custody case.

  1. Understand the Importance of Geographic Restrictions:
    Geographic restrictions are often put in place to ensure stability and consistency in a child’s life. It helps to maintain a close relationship between the child and both parents, promotes a routine, and minimizes disruptions in their education and social life.

The Court has the absolute power to restrict where a child resides; however, the Court cannot tell either parent where they are allowed to live.

  1. Gather Relevant Information:
    To successfully obtain a geographic restriction, you should gather relevant information that supports your case. This evidence can include evidence of the child’s current school, extracurricular activities, medical providers, and community involvement. Additionally, you may need to demonstrate any negative impacts that might arise if the child’s primary residence were to be relocated outside the proposed geographic area.
  2. Consult with an Experienced Family Law Attorney:
    Navigating the legal system can be complex, especially in custody cases. It is crucial to consult with an experienced family law attorney who specializes in Texas custody cases. They will guide you through the process, explain the legal requirements, and help you build a strong case for a geographic restriction.
  3. File a Petition:
    Your attorney will help you file a petition with the appropriate Court to request a geographic restriction. The petition may clearly state the reasons why you believe the limitation is in the child’s best interests; however, that is not absolutely necessary.
  4. Present Evidence:
    During the legal proceedings, it is crucial to present convincing evidence to support your case for a geographic restriction. This can include testimony from witnesses, documents, photographs, and any other evidence that demonstrates the child’s best interests. Your attorney will help you prepare and present the evidence effectively.

For more on how a court decides what is in the child’s best interest click here.

  1. Negotiation or Mediation or Trial or Jury Trial
    In most custody cases, courts encourage parents to settle disputes through mediation. Mediation typically takes place if the matter cannot be resolved through negotiation and prior to trial. But the parties and lawyers can continue to negotiate after mediation and before trial and a trial can even be paused for a mediation, once it has started.

Mediation is an opportunity to reach an agreement on the geographic restriction and “settle out of court,” but the reality is that many residency restriction cases are unsettleable due to there not being a good “middle ground.”

  1. Court Hearing:
    If mediation or negotiation fails, and typically upon request,the Court will schedule a trial to determine the outcome of the geographic restriction.

That’s because failing settlement prior to trial, the only way to end a case is with a trial. In a domicile restriction case, in Texas, a trial can be by Judge alone or by Jury. If by Jury, the decision of the Jury cannot be changed by the Judge.

During the trial, both parties will present their arguments, evidence, and witness testimony. The Court will consider the child’s best interests when making a decision.

  1. Court Decision:
    The Court (Judge alone or Jury) will decide whether to grant the geographic restriction based on the evidence presented. The Judge or Jury will consider various factors, such as the child’s relationships with each parent, the child’s educational and healthcare needs, and the impact of relocation on the child’s overall well-being.
  2. Compliance with the Court Order:
    Both parents must comply with the order once the Court grants the geographic restriction. Failure to comply can result in legal consequences. These consequences can be a finding of contempt and jail time. It is crucial to ensure that the child’s primary residence remains within the specified geographic area as ordered by the Court.

Conclusion:
Obtaining a geographic restriction in a Texas custody case requires careful preparation, effective presentation of evidence, and legal expertise. By understanding the importance of geographic restrictions, consulting with an experienced attorney, and following the legal process, you can increase your chances of obtaining a geographic restriction that serves the best interests of your child.

Summer Wedding Coming Up? Now may be the time to learn some Family Law.

Wedding Checklist - shutterstock_406104781

Summer is a great time for weddings. School is out, the weather is great, and it stays light until late.

If you have a wedding coming up, or you have a son or daughter that does, you have no doubt spent a large amount of time planning everything. The one thing that you may not have had time for yet is an education on what a marriage does to a couple from a legal perspective.

Once the couple is wed, a community estate is created that did not exist just a few seconds earlier. The couple has legal obligations to each other that they did not have just a few seconds earlier. And the bride and groom are tied to each other in ways that they may have never contemplated.

If this is not a first marriage for one or both of the parties, there can be the added complexity of having gone from a separate estate to a community estate, back to a separate estate, and now creating a new community estate.

If there are children already in the picture, the rights and duties of the parties can be drastically altered by the new marriage. If not, or if some come along in the future, it’s good to know in advance how all of that works legally.

Regardless of the situation, beginning a marriage is beginning a new life. Knowing the law is like knowing the Rules on the Box Top of Life; learning some Family Law can give you some knowledge of the Rules on the Box Top of Marriage.

If you or a close family member are about to begin a new life, now may be a good time to make a small investment in some time with a Family Law Attorney to find out how things will change as soon as the second “I do” is spoken.

To speak with an attorney at the Beal Law Firm, please call us at 1-800-811-0380 or write to us at lawyers@bealfirm.com. We would be happy to sit down with you and answer all of your questions.

Child Custody: What is a Standard Possession Schedule?

A key part of any custody order is the possession schedule. Understanding it is the key to understanding when you have the right to have possession of your children and when you don’t. In Texas, Family Code Section 153.312 specifies what the Standard Possession Schedule is. By law, the Standard Possession Schedule (also known as […]

A key part of any custody order is the possession schedule. Understanding it is the key to understanding when you have the right to have possession of your children and when you don’t.

In Texas, Family Code Section 153.312 specifies what the Standard Possession Schedule is.

By law, the Standard Possession Schedule (also known as the SPO) sets out the minimum amount of time that is presumed to be reasonable for a fit parent to have with his or her children. Meaning that unless evidence is introduced proving why it would not be in the Best Interest of the Children to spend at least that much time with a parent, a judge must give a parent at least that much time. For a discussion of the Best Interest standard, see this previous blog post.

At the outset of virtually any possession schedule, whether it is an SPO, Modified SPO, or something else, you will find a statement that “the parties may have possession of the child at times mutually agreed to in advance by the parties.”

If the parties don’t agree on something different, then the terms of the possession schedule in the order control. The basics of the Standard Possession Schedule for the non-primary parent – when the parties live within 100 miles of each other – are this:

  1. First, Third, and Fifth Weekends.

In an SPO, the non-primary parent has the right to have possession of the children on each of the 1st, 3rd, and 5th weekends, from 6:00 p.m. on Friday until 6:00 p.m. on Sunday. The number of the weekend in a month is determined by the Friday. So the 1st Friday of the month starts the 1st weekend of the month. There are usually only four 5th Weekends per year, and often two of them get “trumped” by holiday or summer schedules.

  1. Every Thursday evening, during the school year.

It is critical to note that the Thursdays are only during the school year, even if the child does not attend school. In that case, the calendar of the school in which the child primarily resides is used for the dates of the beginning and ending of the Thursday night possessions. In the SPO, the times for the Thursday evening are 6:00 p.m. to 8:00 p.m.

  1. Every other Thanksgiving and Spring Break.

The parents alternate the Thanksgiving Breaks and the Spring Breaks each year. In the past, some schools only allowed Wednesday, Thursday, and Friday off for Thanksgiving, but now most schools appear to take off an entire week. Regardless of the length, the parent that has the children for Thanksgiving gets them for the entire time that they are out of school, per the SPO.

  1. Christmas Break alternates 1st part and 2nd part.

Under the SPO, Christmas break is divided into two parts. The first part is from the time school is out until noon on December 28th, and the second part is from noon on the 28th until school starts again. In years past, the SPO provided the dividing line on December 26th. Regardless, one parent gets the 1st part in even-numbered years, and the 2nd part in odd-numbered years and vice versa.

  1. Summer Break.

In the summer, the SPO provides that the non-primary parent keeps his or her weekends – subject to some other rules – loses their Thursdays, but gains an extra 30 days. The 30 days have to be exercised in no more than two groups of no less than seven days each. If the non-primary parent fails to give notice of what days he or she wants the children for the summer, there is a default provision, which is basically all of July.

Keep in mind that there is a lot more to it than this. And the terms talked about above do not include the Expanded or Extended provisions, which will be covered in a future blog post. Additionally, be aware that the Standard Possession Schedule only applies to children age three and over.

If you need to discuss any of this with an attorney, you can contact the Beal Law Firm attorneys at 817.261.4333 or 214.414.0418 or write us at lawyers@dfwdivorce.com. Our website can be found at www.dfwdivorce.com.

Custody: How does possession work for Firefighters?

A Firefighter can have a custom possession schedule.

When a firefighter is involved in a custody situation, some unique problems arise. Although Texas has a Standard Possession Schedule that is presumed to be reasonable in most circumstances, that type of schedule won’t work for someone working a firefighter’s schedule.

If the parents can agree on a schedule, they can work out whatever they want, but if disagreements arise, it is best to have a court order that will dictate the terms of possession.

In that case, the court can order a Firefighter Possession Schedule that has terms that will help the firefighter actually be able to spend time with his or her child. Some of these terms include the following:

“_______________is employed as a firefighter with the ________________ Fire Department. He/she works 24-hour shifts, beginning and ending at 7:00 a.m., with 48 hours off in between shifts.”

“Due to his/her work schedule, ________________ is not able to exercise periods of possession occurring on the same days of each month.”

“An annual calendar of ___________________ scheduled work days is published in advance of each calendar year.”

“IT IS ORDERED that within seven days of the day that _______________receives his/her work schedule for the following calendar year, _________________ shall provide a true and correct copy of such schedule to ___________________ via email.”

“In each instance in which the work shift of __________________ ends on a Friday, then he/she shall have the right to possession of the child beginning at the time the child’s school is regularly dismissed on the Friday on which his shift ends and ending at 8:00 P.M. on the following Saturday.”

“In each instance in which the work shift of __________________ ends on a Saturday, then he/she shall have the right to possession of the child beginning at 9:00 a.m. on the Saturday on which his shift ends and ending at 8:00 P.M. on the following Sunday.”

“In each instance in which the work shift of _________________ ends on a Monday, Tuesday, Wednesday or Thursday, then he/she shall have the right to possession of the child beginning at the time the child’s school is regularly dismissed on the day on which his shift ends and ending at the time the child’s school resumes the following day.”

In addition to these, there can be other custom terms to detail how possession will work during the summer and on holidays.

One thing to remember, however, is that a court is not required to give a firefighter any sort of custom provisions, let alone ones that the firefighter believes would be best. All of this is negotiable during a divorce or custody case. If the parties don’t settle, and leave it to the judge to decide, they may end up with a schedule that is better or worse than the one they could have gotten by agreement.

To speak with the attorneys of the Beal Law Firm about your unique situation, you can call us at 817.261.4333 or 214.414.0418, or write to us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

A New Judge for the 360th District Court

Does it matter who the Judge is?

As of January 1, 2017, the Judge of the 360th District Court in Tarrant County, Texas is the Honorable Patricia Bennett. Judge Bennett replaces Judge Michael Sinha, who had been the Judge of the 360th and, the prior to that, the Associate Judge of the 360th for years.

Judge Bennett has chosen Matt Riek to be her Associate Judge, and Judge Riek will take the bench on or about January 16, 2017. Judge Riek replaces Judge Cynthia Mendoza.

Both Judge Bennett and Judge Riek are Board Certified in Family Law by the Texas Board of Legal Specialization, and each has years of experience in divorce, custody, and family law. Additionally, Judge Riek was one of the most sought after and well-respected family law mediators in the Dallas-Fort Worth Metroplex prior to agreeing to accept the position of Associate Judge.

So, with these changes, one might ask: Does it matter who the Judge is?

The short answer, particularly in Family Law is Yes!!!

Family law – meaning divorce, custody, grandparent rights, child support, spousal support, alimony, etc. – is an area of the law that, unlike most areas, is governed by the “discretion of the court.” Under Texas law, the trial court judge has wide discretion in determining a number of items in family law. What that means in simple terms is that you are not entitled to have a jury make the decision, it has to be the judge, and your chances of getting an appellate court to overturn the trial court’s decision are extremely small.

Some of the things that a family court judge gets to decide with little chance of being overturned are:

  1. How the property will be divided in a divorce – Will the property be divided 50/50 or 60/40 or 80/20 or in some other ratio?
  2. What happens to the property in a divorce – Do you get to keep the house? Or does your soon-to-be Ex? Or is there a Court Order to sell it?
  3. Who gets to live in the house while the case is pending?
  4. Who has to pay which bills while the case is pending?
  5. Who gets custody of the children while the case is pending?
  6. How much child support will be paid and by whom to whom?
  7. How much temporary spousal support will be paid, if any, while the case is pending – even if it’s for years – and by whom, to whom?
  8. Does anyone deserve Spousal Maintenance – the Texas version of court-ordered alimony – and if so how much and for how long, within some limits?
  9. What will the rights and duties be with respect to the children? Do you have a say in who the children’s doctor is? Dentist is? Surgeon is? Will there be surgery? Will the children go to a psychiatrist?
  10. On what days and at what times will you be allowed to see your children?
  11. Will you be able to Facetime with your children? Call them? Email them?

These are just a few of the things that family court judges get to decide, and as long as that Judge stays on the bench and as long as the children stay in the county, the same judge will keep deciding these issues regarding your children until they age out of the system.

So what do you think? Does it matter who the judge of your court is?

Christmas Gifts: What happens to them if a divorce comes along?

The holidays are a time for gift-giving. For those going through a divorce at this time of year, the consideration of gifts is especially important.

That’s because, in Texas, all property owned at the time of divorce, including any gifts, must be classified as either separate or community property.

Community property is jointly owned by the married couple and divisible by the judge at the time of divorce. Separate property, however, is not. The court cannot take away separate property in a divorce.

  1. Gifts do not fall under the community presumption.

The general rule is that all property received during a marriage is community property. Gifts, however, are one of the few exceptions. Unlike most property received, gifts are classified as separate property.

  1. The community estate cannot receive a gift.

A gift cannot be given to the community. If the gift is to one spouse or the other, it is the separate property of that spouse. If the gift is made to a married couple, the property is one-half the separate property of each spouse.

  1. Income from a gift belongs to the community estate – usually.

If a gift is received that generates income, even though the gift is separate property, the income generated from the gift is community property. So although a divorce court cannot take away the gift, it can divide and take away some or all of the income. Income includes interest, dividends, and rental income.

  1. A gift from one spouse to the other includes the income – probably

The rule stated above in #3 does change a little bit when it is one spouse giving something to the other. According to the Texas Family Code, Section 3.005, “If one spouse makes a gift of property to the other spouse, the gift is presumed to include all the income and property that may arise from that property.” The presumption can be challenged, however, so if you are giving something to your spouse that you want to not follow the presumption, you need to make sure that you have some written evidence of your actual intent.

To discuss your case with the attorneys of the Beal Law Firm, call us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

Custody and Support: Five Simple Answers for Christmas Related Questions

But what if…

  1. Can I count the Christmas presents that I buy as child support?

No.

Generally speaking, court-ordered child support can only be discharged according to the terms dictated in the order. In fact, most orders contain a warning that says:

                No Credit for Informal Payments

                IT IS ORDERED that the child support as prescribed in this decree shall be exclusively discharged in the manner ordered and that any direct payments made by ______________ to ______________ or any expenditures incurred by ________________ during his/her periods of possession of or access to the child, as prescribed in this decree, for food, clothing, gifts, travel, shelter, or entertainment are deemed in addition to and not in lieu of the support ordered in this decree.

  1. If my ex agrees that I don’t have to pay all of my child support this month because I will be buying Christmas presents, is that true?

No.

In 1991, the Texas Supreme Court determined that the Family Code prohibited parents from making agreements to “modify court-ordered child support without court approval.”

Meaning that any agreements with your ex regarding child support, even if in writing, are unenforceable.

  1. If my ex does not let me have the children like he/she is supposed to for Christmas, can I withhold child support?

No.

A standard warning that is to be included in all support orders is as follows:

REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAILURE TO PAY COURT-ORDERED CHILD SUPPORT TO THAT PARTY.

So, regardless of whether the denial of access is a few minutes or the entirety of Christmas vacation, court ordered child support is still due. Whether the court will later put your ex in jail and give you make-up time is another matter for another day.

  1. If my ex is behind on child support, do I still have to give him/her the children for the Christmas possession?

Yes.

Another standard warning that should be in all orders is:

FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD. 

So, regardless of whether your ex is ten payments behind in child support, one payment behind, or just late with this month’s payment, the court ordered possession is to be allowed. Note, however, that unlike child support, possession can be informally modified by the parties.

  1. If my court order does not contain all of the warnings discussed in this blog, is the answer different for me?

No.

These warnings simply state the law. And the law is the same, whether you have been warned or not.

To discuss any of this with the attorneys at the Beal Law Firm, call us at 214.414.0418 or 817.261.4333, or write us at lawyers@dfwdivorce.com. We are on the web at www.dfwdivorce.com.

What does the Texas Family Code say about Christmas?

’tis the season to review your Court Order and make sure you know that you’re supposed to do.

The Texas Family Code Standard Possession Schedule is designed such that the parents are supposed to divide the major holidays of Thanksgiving and Christmas.

Thanksgiving is handled by alternating years, and Christmas is handled by dividing the Christmas Break and then alternating which parent has the first part and which has the second part. By doing it that way, each parent should get the children on every other Christmas Day.

If the parents have a Court Order, either because of a divorce or custody case, the Court Order dictates the terms of possession. The Standard Possession Order may have been made a part of the order, or there may be a custom or modified schedule.

The Standard Possession Order (“SPO”) provides, in part, as follows:

Sec. 153.314.  HOLIDAY POSSESSION UNAFFECTED BY DISTANCE PARENTS RESIDE APART.  The following provisions govern possession of the child for certain specific holidays and supersede conflicting weekend or Thursday periods of possession without regard to the distance the parents reside apart.  The possessory conservator and the managing conservator shall have rights of possession of the child as follows:

(1)  the possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years;

(2)  the possessory conservator shall have possession of the child in odd-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in even-numbered years;

This section is an antiquated part of the Family Code because it contemplates that one of the parents is named a Possessory Conservator. The Texas Legislature simply has not cleaned up this portion of the code, such that it matches modern terminology.

These days, there is a presumption that both parents will be named as Joint Managing Conservators (“JMC”)— and most are.

If both parents are named as JMC, then the provisions of the code that detail the possession of the Possessory Conservator are applied to whichever JMC is the Non-Primary Conservator — that is, whichever parent does not have the right to establish the primary residence of the children.

In considering the SPO, keep in mind that there is also the “expanded” or “extended” SPO. With respect to Christmas, the Family Code Sections dealing with Christmas state, in part:

Sec. 153.317.  ALTERNATIVE BEGINNING AND ENDING POSSESSION TIMES.  (a)  If elected by a conservator, the court shall alter the standard possession order . . . to provide for one or more of the following alternative beginning and ending possession times for the described periods of possession, unless the court finds that the election is not in the best interest of the child:

…

(4)  for Christmas school vacation periods of possession under Section 153.314(1), beginning at the time the child’s school is dismissed for the vacation;

As stated above, however, the terms of the SPO are irrelevant if a parent has a Court Order that differs from it. The terms of the Court Order must be followed, unless the parents agree on a case by case basis to something different. If there is such an agreed variation, it is best to memorialize the agreement in writing, so that there is no misunderstanding later.

Some parents — either in a modified order or an agreed variation — agree to exchange the children on Christmas Eve, Christmas Day, or December 26th. Interestingly, before 2007, the SPO dictated that exchanges would happen on December 26th, instead of the 28th.

When contemplating a custom possession order, modified SPO, or agreed variation, it is important to think through the following:

  1. What will we do next year? And the following years?
  2. How will this affect the rest of the schedule? For example, if we are doing a week-on, week-off schedule, will this throw off the rest of the schedule, and how are we going to adjust it?
  3. What will this do to our ability to travel during the holidays to see family or for fun? For example, while it may sound like a good idea when children are very young to set up a schedule that provides for exchanges on Christmas Day, doing so will prevent the parties from ever being able to travel very far to see family on Christmas Day, without having to get a agreed variation or going back to court for a modification of the order — neither one of which is certain.

To discuss your situation with one of the attorneys at the Beal Law Firm, call us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.