One of the most difficult topics to resolve in custody litigation is what possession schedule will each party have with the children. Judges in Texas have the discretion to order any possession schedule that the Judge believes is in the best interest of the child, which includes ordering a 50/50 possession schedule. However, the Texas Family Code sets out a specific possession schedule known as the “standard possession schedule” which the law presumes to be the schedule that is in the best interest of the children. Under the standard possession schedule, if each party exercises the maximum periods of possession permitted, then possession is divided between the parties around a 45/55 split. Currently, the standard possession schedule is the schedule most often ordered by the Courts due to the presumption that it is in the best interest of the child.
In recent years, several states have moved towards enacting statutes that set out a 50/50 possession schedule and Texas may be following this trend. Specifically, Texas House Bill Number 453 proposes new legislation regarding equal possession periods for parties in Texas. As of April 20, 2017, Texas House Bill Number 453 is in committee . If this bill passes, it could significantly impact the possession schedules of children in Texas. Even if Texas House Bill Number 453 does not pass, if you are involved in a custody dispute you should have information regarding 50/50 possession schedules so you can make an informed decision on this issue.
What Does a 50/50 Possession Schedule Look Like?
Possession schedules come in all shapes and sizes, and a 50/50 possession schedule is no different. There are many 50/50 possession schedule options, however, the schedules listed below are the ones most commonly used:
- Week on/Week off Schedule: This is exactly as the title suggests. Each party has possession of the child for one week at a time. Some week on/week off schedules allow the party not in possession of the child to have a mid-week period of possession with the child so each party does not go a full seven days without seeing the child (often this is accomplished through a Wednesday evening dinner with the party not in possession of the child).
- 2-2-5: This schedule allows one party to have possession of the child every Monday and Tuesday (the first “2” in 2-2-5), the other party to have possession of the child every Wednesday and Thursday (the second “2” in 2-2-5), and the parties to rotate who has the child on Friday, Saturday and Sunday. The party having weekend possession of the child has 5 days of possession in a row (thus the “5” in 2-2-5). For example, if party A has the child Monday and Tuesday and it is their weekend, the five days they would have the child would be Friday, Saturday, Sunday, Monday, and Tuesday).
- 2-2-3: This schedule involves more frequent contact with each party and less time away from either party. For example, party A would have the child for Monday and Tuesday of Week 1 (the first “2” in 2-2-3), party B would have possession of the child on Wednesday and Thursday of Week 1 (the second “2” in 2-2-3), party A would then have possession of the child for Friday, Saturday, and Sunday of Week 1 (the “3” in 2-2-3). This rotation would start over again for Week 2 with party B having possession of the child Monday and Tuesday (since party A had possession of the child for the 3 days over the weekend), party A having possession of the child Wednesday and Thursday, and party B having possession of the child Friday, Saturday and Sunday.
What Factors Should Be Considered When Assessing Whether a 50/50 Possession Schedule is Best for Your Family?
The following are questions to ask yourself when assessing the use of a 50/50 possession schedule:
- Is a 50/50 schedule best for your child? (take into consideration the child’s needs, physical and mental capabilities)
- Is a 50/50 schedule best for your family?
- Would the 50/50 schedule put the child (and you) in the car for a longer period of time? (i.e. driving distance between each party’s home, and the child’s school/activities)
- Does the 50/50 schedule maximize the child’s quality time with each party? (work schedules, activity schedules, and other scheduling should be factored in)
- Does the 50/50 schedule maximize or minimize the child’s time with their siblings/half siblings/step siblings?
- Would the 50/50 schedule allow the child to participate in his or her activities? (i.e. extracurricular activities, birthday parties, playdates with friends)
- Are you willing to have a set of everything your child needs in your home so the child feels “at home” (i.e. clothing, toiletries, school supplies, etc.)
- How would summer vacations be handled? How would you resume the 50/50 schedule following a holiday? (50/50 possession presumes the schedule remains the same throughout the year, but an order can be drafted to allow each party to have extended time in the summer for family vacations and special activities).
- How would holidays be handled? How would you resume the 50/50 schedule following a holiday?
- How well do you co-parent with the other party?
- What schedule have you been following (for parties who have been separated) and why is it successful/unsuccessful?
- If you’ve had a custody evaluation, what does the custody evaluator recommend?
What Do Judges Think of 50/50 Possession Schedules?
In making the determination of what possession schedule to order, the Judge should evaluate every case based on its own unique facts. However, every Judge has his/her own individual view of 50/50 possession schedules that may impact the Judge’s ruling based on the facts of the case. As a result, some Judges frequently order 50/50 possession schedules while others never order 50/50 possession schedules. It is therefore important to know what position that the Judge in your case has taken in the past regarding 50/50 possession schedules.
In the months to come, the attorneys at GoransonBain Ausley will be closely monitoring Texas House Bill Number 453 and any changes that are made to the possession schedule set forth in the Texas Family Code. If you are contemplating a divorce with children or a change in your current possession schedule, it is important to have an experienced family law practitioner advising you regarding the law on possession schedules and of the benefits and risks associated with pursuing a 50/50 possession schedule.
 To check the status of Texas House Bill 453, please click here: http://www.capitol.state.tx.us/BillLookup/BillStages.aspx?LegSess=85R&Bill=HB453