Helping Texas Families

 

 

 

 

 

 

 

 

 

 

 

I am asked frequently by men, whether or not they can seek primary custody of their children.  The truth is that it is possible but difficult and expensive.  If your spouse is involved with drugs; alcohol; has a criminal record or significant mental illness (untreated) then you may have a chance.  I have experienced some cases where a judge gives the father custody just because the judge feels that the mother is simply not responsible.  I have mostly represented fathers in my practice because of the referrals that I receive but also represent moms.   One thing to know if you are a father is that there is a presumption under Texas Custody law that a man is entitled to a standard possession order.  This presumption is very difficult to overcome.  What is a standard possession order?  I will add one to the end of this article.  Basically this means that the wife would have to show that the father is so terrible that he is not entitled to a right given to almost every father in custody cases pursuant to the Texas Family Code.   The way to show this would be to prove that he is a danger to the child in some significant way.  i.e. drug history; sex-offender history; criminal history; alcohol abuse or deviant behavior.  However, barring these factors, you will most likely get the standard possession order at the very least.   In order for a father to get “full” or primary custody, he must show that the mother is a danger to the child.  But remember that judges are human beings and I have seen male judges give fathers custody because “I just thought the father was more responsible than mom.”  So it  is possible for fathers to get custody (primary) without mom being a bad apple.   Primary means that the parent gets the primary and exclusive right to designate the residence of the child, usually within a geographic area.  Perhaps if you live in Harris County, for example, then it would be within Harris and contiguous counties.   The geographic restriction is now very common because the judiciary and legislature have found that it is in the best interest of the child for both parents to be residing close to one another so that they can equally participate in the child’s extracurricular activities.  The main thing to remember is that the party who is more likely to promote a good relationship between the other parent and the child is most likely to curry favor with the judge.  Slinging mud that is unwarranted is not a good thing.  If there is a legitimate reason to do same then go for it but don’t trump up allegations of bad conduct on the other parent if not warranted.   Well, as promised, I am going to include a short hand rendition of a standard possession order now.  This possession order is just a portion for the parents that reside within a 100 miles of each other.   The Possessory Conservator is the parent who is not primary and has visitation rights.  The Managing Conservator is the party who has primary and designates the residence of the child.

1.         Standard Possession Order

 

IT IS ORDERED that each conservator shall comply with all terms and conditions of this Standard Possession Order.  IT IS ORDERED that this Standard Possession Order is effective immediately and applies to all periods of possession occurring on and after the date the Court signs this Standard Possession Order.  IT IS, THEREFORE, ORDERED:

 

(a)        Definitions

 

1.         In this Standard Possession Order “school” means the primary or secondary school in which the child is enrolled or, if the child is not enrolled in a primary or secondary school, the public school district in which the child primarily resides.

 

2.         In this Standard Possession Order “child” includes each child, whether one or more, who is a subject of this suit while that child is under the age of eighteen years and not otherwise emancipated.

 

(b)       Mutual Agreement or Specified Terms for Possession

 

IT IS ORDERED that the conservators shall have possession of the child at times mutually agreed to in advance by the parties, and, in the absence of mutual agreement, it is ORDERED that the conservators shall have possession of the child under the specified terms set out in this Standard Possession Order.

 

(c)        Parents Who Reside 100 Miles or Less Apart

 

Except as otherwise expressly provided in this Standard Possession Order, when Possessory conservator resides 100 miles or less from the primary residence of the child, Possessory conservator shall have the right to possession of the child as follows:

 

1.         Weekends -

 

On weekends that occur during the regular school term, beginning at 6:00 p.m., on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday.

 

On weekends that do not occur during the regular school term, beginning at 6:00 p.m., on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday.

 

2.         Weekend Possession Extended by a Holiday -

 

Except as otherwise expressly provided in this Standard Possession Order, if a weekend period of possession by Possessory conservator begins on a student holiday or a teacher in-service day that falls on a Friday during the regular school term, as determined by the school in which the child is enrolled, or a federal, state, or local holiday that falls on a Friday during the summer months when school is not in session, that weekend period of possession shall begin at 6:00 p.m. on the immediately preceding Thursday.

 

Except as otherwise expressly provided in this Standard Possession Order, if a weekend period of possession by Possessory conservator ends on or is immediately followed by a student holiday or a teacher in-service day that falls on a Monday during the regular school term, as determined by the school in which the child is enrolled, or a federal, state, or local holiday that falls on a Monday during the summer months when school is not in session, that weekend period of possession shall end at 6:00 p.m. on that Monday.

 

3.         Thursdays – On Thursday of each week during the regular school term, beginning at 6:00 p.m. and ending at 8:00 p.m.

 

4.         Spring Vacation in Even-Numbered Years – In even-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school for the school’s spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation.

 

5.         Extended Summer Possession by Possessory conservator -

 

With Written Notice by April 1 – If Possessory conservator gives Managing conservator/primary conservator written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Possessory conservator shall have possession of the child for thirty days beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation in that year, to be exercised in no more than two separate periods of at least seven consecutive days each, with each period of possession beginning and ending at 6:00 p.m. on each applicable day, as specified in the written notice.  These periods of possession shall begin and end at 6:00 p.m. on each applicable day.

 

Without Written Notice by April 1 – If Possessory conservator does not give Managing conservator/primary conservator written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Possessory conservator shall have possession of the child for thirty consecutive days in that year beginning at 6:00 p.m. on July 1 and ending at 6:00 p.m. on July 31.

 

Notwithstanding the Thursday periods of possession during the regular school term and the weekend periods of possession ORDERED for Possessory conservator, it is expressly ORDERED that Managing conservator/primary conservator shall have a superior right of possession of the child as follows:

 

1.         Spring Vacation in Odd-Numbered Years – In odd-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school for the school’s spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation.

 

2.         Summer Weekend Possession by Managing conservator/primary conservator – If Managing conservator/primary conservator gives Possessory conservator written notice by April 15 of a year, Managing conservator/primary conservator shall have possession of the child on any one weekend beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on the following Sunday during any one period of the extended summer possession by Possessory conservator in that year, provided that Managing conservator/primary conservator picks up the child from Possessory conservator and returns the child to that same place and that the weekend so designated does not interfere with Father’s Day possession.

 

3.         Extended Summer Possession by Managing conservator/primary conservator – If Managing conservator/primary conservator gives Possessory conservator written notice by April 15 of a year or gives Possessory conservator fourteen days’ written notice on or after April 16 of a year, Managing conservator/primary conservator may designate one weekend beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation, during which an otherwise scheduled weekend period of possession by Possessory conservator shall not take place in that year, provided that the weekend so designated does not interfere with Possessory conservator’s period or periods of extended summer possession or with Father’s Day possession.

Stay tuned for the second part of the standard possession order for parents living more than 100 miles apart.  Thanks for reading.

 

(c)        Parents Who Reside 100 Miles or Less Apart

 

Except as otherwise expressly provided in this Standard Possession Order, when Possessory conservator resides 100 miles or less from the primary residence of the child, Possessory conservator shall have the right to possession of the child as follows:

 

1.         Weekends -

 

On weekends that occur during the regular school term, beginning at 6:00 p.m., on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday.

 

On weekends that do not occur during the regular school term, beginning at 6:00 p.m., on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday.

 

2.         Weekend Possession Extended by a Holiday -

 

Except as otherwise expressly provided in this Standard Possession Order, if a weekend period of possession by Possessory conservator begins on a student holiday or a teacher in-service day that falls on a Friday during the regular school term, as determined by the school in which the child is enrolled, or a federal, state, or local holiday that falls on a Friday during the summer months when school is not in session, that weekend period of possession shall begin at 6:00 p.m. on the immediately preceding Thursday.

 

Except as otherwise expressly provided in this Standard Possession Order, if a weekend period of possession by Possessory conservator ends on or is immediately followed by a student holiday or a teacher in-service day that falls on a Monday during the regular school term, as determined by the school in which the child is enrolled, or a federal, state, or local holiday that falls on a Monday during the summer months when school is not in session, that weekend period of possession shall end at 6:00 p.m. on that Monday.

 

3.         Thursdays – On Thursday of each week during the regular school term, beginning at 6:00 p.m. and ending at 8:00 p.m.

 

4.         Spring Vacation in Even-Numbered Years – In even-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school for the school’s spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation.

 

5.         Extended Summer Possession by Possessory conservator -

 

With Written Notice by April 1 – If Possessory conservator gives Managing conservator/primary conservator written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Possessory conservator shall have possession of the child for thirty days beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation in that year, to be exercised in no more than two separate periods of at least seven consecutive days each, with each period of possession beginning and ending at 6:00 p.m. on each applicable day, as specified in the written notice.  These periods of possession shall begin and end at 6:00 p.m. on each applicable day.

 

Without Written Notice by April 1 – If Possessory conservator does not give Managing conservator/primary conservator written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Possessory conservator shall have possession of the child for thirty consecutive days in that year beginning at 6:00 p.m. on July 1 and ending at 6:00 p.m. on July 31.

 

Notwithstanding the Thursday periods of possession during the regular school term and the weekend periods of possession ORDERED for Possessory conservator, it is expressly ORDERED that Managing conservator/primary conservator shall have a superior right of possession of the child as follows:

 

1.         Spring Vacation in Odd-Numbered Years – In odd-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school for the school’s spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation.

 

2.         Summer Weekend Possession by Managing conservator/primary conservator – If Managing conservator/primary conservator gives Possessory conservator written notice by April 15 of a year, Managing conservator/primary conservator shall have possession of the child on any one weekend beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on the following Sunday during any one period of the extended summer possession by Possessory conservator in that year, provided that Managing conservator/primary conservator picks up the child from Possessory conservator and returns the child to that same place and that the weekend so designated does not interfere with Father’s Day possession.

 

3.         Extended Summer Possession by Managing conservator/primary conservator – If Managing conservator/primary conservator gives Possessory conservator written notice by April 15 of a year or gives Possessory conservator fourteen days’ written notice on or after April 16 of a year, Managing conservator/primary conservator may designate one weekend beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation, during which an otherwise scheduled weekend period of possession by Possessory conservator shall not take place in that year, provided that the weekend so designated does not interfere with Possessory conservator’s period or periods of extended summer possession or with Father’s Day possession.

(d)       Parents Who Reside More Than 100 Miles Apart

 

Except as otherwise expressly provided in this Standard Possession Order, when Possessory conservator resides more than 100 miles from the residence of the child, Possessory conservator shall have the right to possession of the child as follows:

 

1.         Weekends – Unless Possessory conservator elects the alternative period of weekend possession described in the next paragraph, Possessory conservator shall have the right to possession of the child on weekends that occur during the regular school term, beginning at 6:00 p.m., on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday, and on weekends that do not occur during the regular school term, beginning at 6:00 p.m. on the first, third and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday.

 

Alternate Weekend Possession – In lieu of the weekend possession described in the foregoing paragraph, Possessory conservator shall have the right to possession of the child not more than one weekend per month of Possessory conservator’s choice beginning at 6:00 p.m. on the day school recesses for the weekend and ending at 6:00 p.m. on the day before school resumes after the weekend.  Possessory conservator may elect an option for this alternative period of weekend possession by giving written notice to Managing conservator/primary conservator within ninety days after the parties begin to reside more than 100 miles apart.  If Possessory conservator makes this election, Possessory conservator shall give Managing conservator/primary conservator fourteen days’ written or telephonic notice preceding a designated weekend.  The weekends chosen shall not conflict with the provisions regarding Christmas, Thanksgiving, the child’s birthday, and Mother’s Day possession below.

 

2.         Weekend Possession Extended by a Holiday -

 

Except as otherwise expressly provided in this Standard Possession Order, if a weekend period of possession by Possessory conservator begins on a student holiday or a teacher in-service day that falls on a Friday during the regular school term, as determined by the school in which the child is enrolled, or a federal, state, or local holiday during the summer months when school is not in session, that weekend period of possession shall begin at 6:00 p.m. on the immediately preceding Thursday

 

Except as otherwise expressly provided in this Standard Possession Order, if a weekend period of possession by Possessory conservator ends on or is immediately followed by a student holiday or a teacher in-service day that falls on a Monday during the regular school term, as determined by the school in which the child is enrolled, or a federal, state, or local holiday that falls on a Monday during the summer months when school is not in session, that weekend period of possession shall end at 6:00 p.m. on that Monday.

 

3.         Spring Vacation in All Years – Every year, beginning at 6:00 p.m. on the day the child is dismissed from school for the school’s spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation.

 

4.         Extended Summer Possession by Possessory conservator -

 

With Written Notice by April 1 – If Possessory conservator gives Managing conservator/primary conservator written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Possessory conservator shall have possession of the child for forty-two days beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation in that year, to be exercised in no more than two separate periods of at least seven consecutive days each, with each period of possession beginning and ending at 6:00 p.m. on each applicable day, as specified in the written notice.  These periods of possession shall begin and end at 6:00 p.m. on each applicable day.

 

Without Written Notice by April 1 – If Possessory conservator does not give Managing conservator/primary conservator written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Possessory conservator shall have possession of the child for forty-two consecutive days beginning at 6:00 p.m. on June 15 and ending at 6:00 p.m. on July 27 of that year.

 

Notwithstanding the weekend periods of possession ORDERED for Possessory conservator, it is expressly ORDERED that Managing conservator/primary conservator shall have a superior right of possession of the child as follows:

 

1.         Summer Weekend Possession by Managing conservator/primary conservator – If Managing conservator/primary conservator gives Possessory conservator written notice by April 15 of a year, Managing conservator/primary conservator shall have possession of the child on any one weekend beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on the following Sunday during any one period of possession by Possessory conservator during Possessory conservator’s extended summer possession in that year, provided that if a period of possession by Possessory conservator in that year exceeds thirty days, Managing conservator/primary conservator may have possession of the child under the terms of this provision on any two nonconsecutive weekends during that period and provided that Managing conservator/primary conservator picks up the child from Possessory conservator and returns the child to that same place and that the weekend so designated does not interfere with Father’s Day possession.

 

2.         Extended Summer Possession by Managing conservator/primary conservator – If Managing conservator/primary conservator gives Possessory conservator written notice by April 15 of a year, Managing conservator/primary conservator may designate twenty-one days beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation in that year, to be exercised in no more than two separate periods of at least seven consecutive days each, during which Possessory conservator shall not have possession of the child, provided that the period or periods so designated do not interfere with Possessory conservator’s period or periods of extended summer possession or with Father’s Day possession.  These periods of possession shall begin and end at 6:00 p.m. on each applicable day.

 

(e)        Holidays Unaffected by Distance

 

Notwithstanding the weekend and Thursday periods of possession of Possessory conservator, Managing conservator/primary conservator and Possessory conservator shall have the right to possession of the child as follows:

 

1.         Christmas Holidays in Even-Numbered Years – In even-numbered years, Possessory conservator shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and Managing conservator/primary conservator shall have the right to possession of the child beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after that Christmas school vacation.

 

2.         Christmas Holidays in Odd-Numbered Years – In odd-numbered years, Managing conservator/primary conservator shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and Possessory conservator shall have the right to possession of the child beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after that Christmas school vacation.

 

3.         Thanksgiving in Odd-Numbered Years – In odd-numbered years, Possessory conservator shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.

 

4.         Thanksgiving in Even-Numbered Years – In even-numbered years, Managing conservator/primary conservator shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.

 

5.         Child’s Birthday – If a parent is not otherwise entitled under this Standard Possession Order to present possession of a child on the child’s birthday, that parent shall have possession of the child beginning at 6:00 p.m. and ending at 8:00 p.m. on that day, provided that that parent picks up the child from the other parent’s residence and returns the child to that same place.

 

6.         Father’s Day – Possessory conservator shall have the right to possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Father’s Day and ending at 6:00 p.m. on Father’s Day, provided that if Possessory conservator is not otherwise entitled under this Standard Possession Order to present possession of the child, he shall pick up the child from Managing conservator/primary conservator’s residence and return the child to that same place.

 

7.         Mother’s Day – Managing conservator/primary conservator shall have the right to possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Mother’s Day and ending at 6:00 p.m. on Mother’s Day, provided that if Managing conservator/primary conservator is not otherwise entitled under this Standard Possession Order to present possession of the child, she shall pick up the child from Possessory conservator’s residence and return the child to that same place.

 

(f)        Undesignated Periods of Possession

 

Managing conservator/primary conservator shall have the right of possession of the child at all other times not specifically designated in this Standard Possession Order for Possessory conservator.

 

(g)       General Terms and Conditions

 

Except as otherwise expressly provided in this Standard Possession Order, the terms and conditions of possession of the child that apply regardless of the distance between the residence of a parent and the child are as follows:

 

1.         Surrender of Child by Managing conservator/primary conservator – Managing conservator/primary conservator is ORDERED to surrender the child to Possessory conservator at the beginning of each period of Possessory conservator’s possession at the residence of Managing conservator/primary conservator.

 

2.         Return of Child by Possessory conservator – Possessory conservator is ORDERED to return the child to the residence of Managing conservator/primary conservator at the end of each period of possession.

 

3.         Surrender of Child by Possessory conservator – Possessory conservator is ORDERED to surrender the child to Managing conservator/primary conservator, if the child is in Possessory conservator’s possession or subject to Possessory conservator’s control, at the beginning of each period of Managing conservator/primary conservator’s exclusive periods of possession, at the place designated in this Standard Possession Order.

 

4.         Return of Child by Managing conservator/primary conservator – Managing conservator/primary conservator is ORDERED to return the child to Possessory conservator, if Possessory conservator is entitled to possession of the child, at the end of each of Managing conservator/primary conservator’s exclusive periods of possession, at the place designated in this Standard Possession Order.

 

5.         Personal Effects – Each conservator is ORDERED to return with the child the personal effects that the child brought at the beginning of the period of possession.

 

6.         Designation of Competent Adult – Each conservator may designate any competent adult to pick up and return the child, as applicable.  IT IS ORDERED that a conservator or a designated competent adult be present when the child is picked up or returned.

 

7.         Inability to Exercise Possession – Each conservator is ORDERED to give notice to the person in possession of the child on each occasion that the conservator will be unable to exercise that conservator’s right of possession for any specified period.

 

8.         Written Notice – Written notice shall be deemed to have been timely made if received or postmarked before or at the time that notice is due.

 

This concludes the Standard Possession Order.

 

What Judges Have Shared With Me

Who make the best witnesses in a custody hearing?

Teachers; coaches; sunday school teachers; health care providers; therapists; babysitters; school registrars; school principals; school nurses; after school program directors; brownie leaders; girl-scout leaders; play-date participants (other parents) and any other objective witness.  Family members and friends are second.  The reason is logical, your friends and family are almost always say that you are the better parent.

Teachers; counselors; school nurses and others are not your friends or family members and are going to know which parent is what we call “primary.”  Primary means the parent that participates most in the child’s education; welfare; health and is present most of the time.

What is good evidence at a custody hearing?  Good evidence includes registrar’s school records indicating whether the child shows up on time for school or whether the child is tardy.   The lady who opens the door to your vehicle to allow your child to exit in the mornings to go to school.  She notices who drops the child off the most.  School nurses provide great evidence as to the health (physical and mental) of your child, their appearance, etc.

The teacher of course can report which parent is most involved in reading lists; getting assignments in on time and grades.   Which parent is on the email list?  Which parent shows up at the parent teacher meetings.

Child care providers can provide great information if your child is too young for regular school as to which parent the child bonds with more; how the child appears when the child is dropped off for daycare.   What the child’s reaction is when the parent arrives to pick them up, etc.

If you do not have any of these types of witnesses available, then bring the family and friends to your custody hearings.   There is strength in numbers and they can provide moral support to you if you need it during the hearing.  They can also provide a unified front and intimidate the other side if they brought no one to the hearing.

Remember that if you bring an army of witnesses to your custody hearing or temporary order’s hearing, the judge may not allow all of them to testify because of time issues.  Especially if you are in a large county, like Harris County, TX.  I have brought 12 witnesses to a hearing before and been told that I could only put my client on and two additional witnesses.   Some of the judges may give more time but be prepared to be limited on the number of witnesses you can put on at your hearing.

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