’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:
- What will we do next year? And the following years?
- 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?
- 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 firstname.lastname@example.org. You can find us on the web at www.dfwdivorce.com.