Tag: Geographic Restriction

Custody: What is the Extended or Expanded Standard Possession Schedule?

As discussed in a previous blog post, Texas has a Standard Possession Schedule that is part of the Texas Family Code. The Standard Possession Schedule (“SPO”), for the most part, limits the time that the non-primary parent has a right to see his or her children during the school year to 1st, 3rd, and 5th weekends from 6:00 p.m. Friday to 6:00 p.m. Sunday – and very few months have 5 weekends.

The good news for non-primary parents that want to see their children more than the SPO provides is that the Texas Family Code Section 153.317 provides for “Alternate Beginning and Ending Possession Times,” that can create what is commonly known as an Extended or Expanded Standard Possession Schedule.

The Code states, in part:

“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:

(1)  for weekend periods of possession. . . during the regular school term:

(A)  beginning at the time the child’s school is regularly dismissed;

(B)  ending at the time the child’s school resumes after the weekend; or

(C)  [both] beginning at the time described by Paragraph (A) and ending at the time described by Paragraph (B);

(2)  for Thursday periods of possession [during the school year]. . .:

(A)  beginning at the time the child’s school is regularly dismissed;

(B)  ending at the time the child’s school resumes on Friday; or

(C)  [both] beginning at the time described by Paragraph (A) and ending at the time described by Paragraph (B);

(3)  for spring vacation periods of possession . . ., beginning at the time the child’s school is dismissed for those vacations;

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

(5)  for Thanksgiving holiday periods of possession . . ., beginning at the time the child’s school is dismissed for the holiday;

(6)  for Father’s Day periods of possession . . ., ending at 8 a.m. on the Monday after Father’s Day weekend;

(7)  for Mother’s Day periods of possession . . .:

(A)  beginning at the time the child’s school is regularly dismissed on the Friday preceding Mother’s Day;

(B)  ending at the time the child’s school resumes after Mother’s Day; or

(C)  beginning at the time described by Paragraph (A) and ending at the time described by Paragraph (B); or

(8)  for weekend periods of possession that are extended . . . by a student holiday or teacher in-service day that falls on a Friday, beginning at the time the child’s school is regularly dismissed on Thursday.”

As important as the optional extra time is, possibly the most important part of the Code provision is that the choice of getting the extra time belongs to the non-primary parent, as long as the election is made properly and timely, unless “the court finds that the election is not in the best interest of the child.”

That means that if a non-primary parent is denied any of the extra time he or she seeks, the court can be made to explain its denial, and the denial is subject to review by an appellate court.

Different people measure time spent with children differently – some count the nights, some count the hours, some count the “quality time.” The real good news with the expanded schedule provided by 153.317 is that by some measure, even the “loser” of a custody battle can get to have his or her children for almost 45% of time – depending upon how it’s counted. Whether the parent can actually exercise the time depends in large part on the distance between the parents – which to some extent is governed by whether a geographic restriction exists. For more on that, see the prior blog post.

To discuss your custody issue with the lawyers 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.

What if I don’t like the way it is? The basics of Child Custody Modification

In Family Law, children’s issues are very different than property issues. When dealing with children’s issues, Courts are allowed to redo their orders over and over and over again. With property, pretty much once it’s done, it’s done.

Issues involving a child are decided in what is known as a SAPCR. That stands for Suit Affecting Parent-Child Relationship.

SAPCRs can be stand-alone cases, e.g. if two unmarried people have a child together, or they can be a part of a divorce.

Children’s issues include:

  1. Custody – Joint Managing Conservator, Sole Managing Conservator, and Possessory Conservator
  2. Residency
  3. Rights to make medical decisions, educational decisions, and psychological decisions
  4. Possession schedule, including holiday schedules, summer schedules, etc.
  5. Rights concerning extracurricular activities
  6. Electronic access, including texting, phone calls, Face Time, and Skype
  7. Child Support
  8. Health Insurance payments
  9. Payments for uninsured healthcare expenses

The results of a SAPCR case – whether a stand-alone SAPCR or a SAPCR that is a part of a divorce – can be re-litigated repeatedly. Either party can file for a modification of the orders, if certain criteria are met.

In order to properly seek a modification of any non-support issues, one of three things needs to have happened:

  1. There must have been a material and substantial change in circumstances; or
  2. A child for whom modification is sought must be over the age of 12 and ready to tell the judge that he or she wants to move to the other parent’s house; or
  3. The conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.

Texas Family Code Section 156.101.

In addition to having at least one of these three things, in order to win, the person asking for the change must prove to the court that the change is in the best interest of the child.

As you might guess, there is a lot more to it than this. Keep an eye on our blog for more information, and if you would like to discuss your case with the attorneys of the Beal Law Firm, you can call us at 817.261.4333 or 214.414.0418 anytime, or write us at lawyers@dfwdivorce.com. We are on the web at www.dfwdivorce.com

 

I Want to Move – But I Don’t Want You to Move: Lifting the Geographic Restriction

Relocation cases are difficult. One of the main reasons is that it is hard to find a compromise. If mom and dad get a Texas divorce, and mom wants to move with the children to New York, the compromise of mom moving to Tennessee is not likely to make anyone happy. Since it’s hard to settle a relocation case, they often end up going to trial – and that can be expensive and time-consuming.

Relocation is really the other side of the geographic restriction coin. If the prior decree or order does not have a geographic restriction (also known as a residency restriction or domicile restriction), then theoretically there is no relocation case or battle that needs to be fought.

When there is a geographic restriction, any attempt by the primary parent to move beyond the restricted area, can lead to a relocation case. Relocation cases can be dealing with moves across town or moves out of State or out of the Country.

If tried to the judge alone (a “bench trial”), the issue of relocation is completely within the discretion of the court. The parties in a relocation case have a choice, however, because the issue can be tried to a jury. In fact, per the Texas Family Code, the judge cannot alter the jury’s finding on the issue.

So whether to a judge or jury, the question is: What kind of evidence will you need to win your side of the argument?

The Supreme Court of Texas in the case of Lenz v. Lenz listed a number of factors for courts to consider when making the determination of whether a request for relocation should be granted. These so-called Lenz Factors include the following:

  1. The reasons for and against the move;
  2. A comparison of education, health, and leisure opportunities;
  3. Whether any special needs or talents of the children can be accommodated;
  4. The effect on extended family relationships;
  5. The effect on visitation and communication with the noncustodial parent to maintain a full and continuous relationship with a child; and
  6. Whether the noncustodial parent has the ability to relocate.

When considering whether to file a relocation case or how to defend one, it is critical to determine and gather all the evidence that you can on all of the Lenz Factors.

If you need to talk to someone about geographic restriction (domicile restriction, residency restriction) and how to get it in place, keep it, or fight against it, you can contact us at lawyers@dfwdivorce.com or find us at www.dfwdivorce.com