Understanding the “Standard Possession Order”

In a divorce with children, and in other cases involving custody, the courts often impose what is commonly known as a “Standard Possession Order” or “SPO” for short, to resolve the competing desires of the parents to allocate periods of time with their children. Under Texas law, it is presumed that the SPO is in the best interest of the child[ren]. Further, it is presumed the SPO provides the minimum reasonable amount of possession of a child for a parent named as a possessory conservator or joint managing conservator. Nevertheless, despite the fact the SPO is “standard,” the order is quite complex and can still lead to confusion. Indeed, there is a surprisingly large amount of litigation each year in Texas due to the failure of parents to follow the SPO. Thus, let’s take a few minutes to review the basic elements of the Texas SPO and address some of the common misunderstandings that typically arise.

First, it’s important to understand that the SPO is divided into two separate plans, depending upon the circumstances of the parties. One set of rules applies when the parents live within 100 miles of each other, and the other applies only when the parents live more than 100 miles apart. For the purpose of this article, I’ll focus most attention on the system of rules for parents living less than 100 miles from each other as that is the reality we most often face.

Initially, it’s important to understand that every SPO will include language that states:

“IT IS ORDERED that the parties may have possession of the child at all times mutually agreed to in advance by the parties and, in the absence of mutual agreement, shall have possession of the child under the specified terms set out in the standard possession order.”

In other words, the courts, judges, and our state legislature have all agreed that if the parents can decide when and how by mutual agreement they are to share possession with their children, even after the divorce is long over, no other rules are required to be followed. If, however, the parents cannot agree, then the standard possession rules must be followed, and the failure of one parent to follow the SPO could lead to criminal or civil contempt. Put another way, parents can agree to whatever possession schedule works best for them and their kids, modify it several times over and follow it for years. However, if the “mutual agreement” aspect is no longer there… then, the parties must revert back to the SPO.

So, let’s assume we are following the SPO. The order will specify which parent will have possession of the children on the first, third and fifth weekends of each month. At the option of the parent with the SPO, during the regular school year, weekends will either begin at the time school is out on Friday afternoon and continue until the following Monday morning when school resumes – on the first, third and fifth weekends of each month during the school term. Or, the weekends will begin at 6 PM on Friday and end at 6 PM on Sunday. (In the summer, 1-3-5 weekends continue, but are always Friday at 6pm to Sunday at 6pm). And, note that I said the weekends begin on Friday. This is very important and creates much of the confusion I’ve seen in my practice over the past 28 years. Weekends start on Friday. It cannot be repeated often enough. A weekend does not begin on Saturday as far as the Texas family code is concerned. This October of 2016 is a perfect example. October 1st this year was on Saturday. However, that was not the first weekend of October. Rather, the first weekend of October under the SPO was actually the weekend that began Friday, October 7, 2016. And, just as confusing, there were five Fridays in September, the month before. Take a look at your calendar. To truly understand the 1-3-5 weekend framework of the SPO, realize the fifth Friday of September was September 30, and that weekend carried over into Saturday, October 1 and Sunday, October 2ND. Then, the first weekend of the month was October 7-9. A parent entitled to first, third and fifth-weekend possession had back-to-back weekend periods of possession for the September 30th and the October 7th weekends. Remember, under the SPO, every weekend begins on the Friday of the weekend, regardless of what day of the month that Friday happens to be.

In addition to the 1-3-5 weekends, during the regular school term, the noncustodial parent will have the choice of possession of the child[ren] every single Thursday of every single week during the school year from the time school is out in the afternoon overnight until the time school resumes again on Friday morning. Some SPO allow Thursday night from 6 PM to 8 PM. However, it is the absolute right of each noncustodial parent, the person who has the SPO, to elect to have the longer periods of time (the overnight from Thursday to Friday morning and from the time Friday afternoon when school is out until Monday morning when school resumes) so it’s important that you tell your attorney you want what is called the “expanded” SPO. If you do so, it will be clear to the lawyers and to the judge you are asking for the longer possession periods. (During the summer, there is NO Thursday possession AT ALL).

During the summer, the SPO grants an extended summer possession to the possessory conservator. In addition to the 1-3-5 weekend, he/she will get 30 extra days. There are specific rules to follow, and the deadline is April 1 of each year. If that deadline isn’t met, then the 30 days, by default, begins on July 1 and runs to July 31. However, there is a chance for the other parent to break up the 30 days with a weekend possession of their own if notice is given by April 15.

Another change that has been made to the SPO over the years is with regard to Christmas vacation. The current SPO splits Christmas vacation between the parents such that one parent has possession of the child[ren] from the time school is out for Christmas vacation until noon on December 28, and the other parent then picks up the second half of the vacation until the time school resumes after the New Year’s holiday. The parent who has the second half of Christmas vacation will have the child[ren] for Thanksgiving that same holiday season. This pattern alternates each year, and is the same schedule regardless of whether or not the parents live less than, or more than, 100 miles apart from each other.

There are many other components and nuances to the SPO, including several provisions regarding picking up and dropping off the children, personal clothing they take with them and should have when they return, birthdays, extended summer possession, etc.

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Feel free to contact me or any of the other attorneys at Bailey & Galyen for an initial no-charge consultation if you have questions in this regard. The family law attorneys at Bailey and Galyen are dedicated to providing you with quality counsel and personalized service. If you are facing the challenges of a contested custody case or divorce with children, you should seek legal counsel.