Divorce and Custody: Possession Schedules for Children Under Age Three

When couples go through a divorce with children or just a custody case, one of the most important things to be determined is the possession schedule for the children.

If the parties cannot agree to a schedule that is in the Best Interest of the Children, the court will order a schedule.

As discussed in a prior blog post, Texas has established a Standard Possession Schedule (SPO) for use by divorce and custody courts in ordering the possession of children. By law, however, the SPO is designed to be used for children age three and over.

So what about children under the age of three?

Neither the Texas Family Code nor case law establish a standard schedule for children under the age of three.

For children that young, the Family Code states that “The court shall render an order appropriate under the circumstances” and then gives a non-exhaustive list of factors that courts are obligated to consider.

The factors detailed in the Code are:

(1)  the caregiving provided to the child before and during the current suit;

(2)  the effect on the child that may result from separation from either party;

(3)  the availability of the parties as caregivers and the willingness of the parties to personally care for the child;

(4)  the physical, medical, behavioral, and developmental needs of the child;

(5)  the physical, medical, emotional, economic, and social conditions of the parties;

(6)  the impact and influence of individuals, other than the parties, who will be present during periods of possession;

(7)  the presence of siblings during periods of possession;

(8)  the child’s need to develop healthy attachments to both parents;

(9)  the child’s need for continuity of routine; and

(10)  the location and proximity of the residences of the parties.

The code also states that the court shall consider “the need for a temporary possession schedule that incrementally shifts to” an appropriate schedule beginning at age three, with the incremental shifts based upon what would be appropriate, given the child’s age, and any evidence of “minimal or inconsistent contact with the child” by either parent.

Finally, the Code mandates the Courts consider “the ability of the parties to share in the responsibilities, rights, and duties of parenting” and “any other evidence of the best interest of the child.”

So what does a “a temporary possession schedule that incrementally shifts” (a “stairstep schedule” or “stairstep possession schedule”) look like?

With respect to Weekday and Weekend Possession, it may provide that the non-primary parent’s possession schedule is as follows:

1. Tuesdays – On Tuesday of each week, beginning at 5:00 p.m. and ending at 8:00 p.m.

2. Thursdays – On Thursday of each week, beginning at 5:00 p.m. and ending at 8:00 p.m.

3. Saturdays Until the Child’s Second Birthday – Until the child reaches two years of age, on the first, third, and fifth Saturday of each month, beginning at 10:30 a.m. and ending at 5:00 p.m. on that same day.

4. Sundays Until the Child’s Second Birthday – Until the child reaches two years of age, on the first, third, and fifth Sunday of each month, beginning at 10:30 a.m. and ending at 5:00 p.m. on that same day.

5. Weekends Beginning on the Child’s Second Birthday-When the child reaches two years of age, on weekends, beginning at 10:30 a.m. on the first, third, and fifth Saturday of each month and ending at 6:00 p.m. on the following Sunday.

In addition to these terms, it would likely have additional time for holidays and the child’s birthday.

But, remember that stairstep schedules like that above are not mandatory. Even after considering all of the factors found in the Family Code, the Court may order that the non-primary parent have a standard possession schedule or even a 50-50 schedule, such as a week-on, week-off schedule.

If the parents don’t agree, it is up to the discretion of the court. Just because an SPO or more is not presumed the correct choice, does not mean that a court cannot decide, in its discretion, that it is the best choice.

There is a lot to know about possession schedules, as well as all of the other components of a custody order. To discuss any of this with the attorneys at the Beal Law Firm, call 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.