A possession order is a legal document that tells you the rights that each party (parent or nonparent) has to the possession of a child. Under the Texas Family Code § 153.252, a Standard Possession Order (SPO), is a possession order that provides “reasonable minimum possession of a child,” and that the law presumes is in the best interest of any child aged 3 years or older.
It first identifies that parents may have possession of a child whenever both parents agree; however, if the parties cannot agree on who gets possession, or when each person should get possession, the SPO outlines a schedule that the parties must follow.
Parents Residing Within 100 Miles of Each Other
Where the parties reside less than 100 miles of each other, the noncustodial parent (the parent that the child does not live with) is entitled to possession of the child on the 1st, 3rd and 5th weekends of every month. They are also entitled to see the child on Thursday evenings during the school year, alternating holidays, and for an extended time period during summer (usually 30 days).
Parents Residing More Than 100 miles Apart
When a parent lives more than 100 miles from the other, the noncustodial parent is entitled to the 1st, 3rd, and 5th weekends of every month, or they may choose any one weekend during a month, with no less than 14 days prior written or telephone notice to the custodial parent. There is no right to the noncustodial parent to see the child during the week, but holidays stay the same and they get a longer period of time during the summer holidays (usually 42 days).
Do I have to use an SPO if we can’t agree on Possession?
No. Your lawyer can draft what is called a Modified Possession order that meets the needs of your particular family situation. The Standard Possession order may not work for every family, and if this is the case for you, your attorney may get creative in crafting an agreement that suits your needs. The Court will usually give deference to an agreement reached between the parties, as long as the agreement is in the best interest of the child.
My Child is Under Three
For children under three, there is no presumption that the SPO is in the best interest of the child and, therefore, the parties may choose to use the SPO or any other possession schedule that they can agree upon. If the parties cannot agree, then the Judge will decide the possession schedule under the guidelines of the Texas Family Code § 153.254. The Court will consider a number of factors in making that determination, such as any effects on the child due to the separation from either party, any special needs the child may have, the presence of siblings during periods of possession, etc.
What happens if the Other Parent is not Following the SPO?
If you are a party to an SPO and the other parent is not complying with the order, you are entitled to file what is called a “Motion to Enforce” with the court. The Motion to enforce is governed by Texas Family Code chapter 157.002, which requires that the motion state: the provision that is to be enforced; the manner in which the other party failed to comply; the relief sought by the movant (you or your attorney). You also need to sign the motion.
It is very important that you show the Court a pattern of denial by the other party/parent. Usually, three documented violations of the order will suffice, but having third party witnesses, as well as other evidence of the violations will help to corroborate your claim.
We Can Help
Visitation and access to your child is an extremely important issue and, here at the Ted Smith Law Group, we can help you navigate your options to create, enforce, or modify a possession order that is perfectly tailored to your family dynamic. To better understand how we can assist, contact us today for your free initial consultation with one of our lawyers.
With strength and integrity, we stand ready to help you.