Residential Schedule

Children of separation and divorce go back and forth between parents' houses on a schedule. Let me say that a different way – the parents each have one house. The children have two houses and one world presided over by two adults who live separately. The schedule lets the children know where they’re going to be on what days so that they can plan and their parents can plan.

Within reason, the sky is the limit here. Parents can, should, and do agree to schedules that minimize stress on the children and account for variations in the parent’s work life, ability, and availability. Not very long ago the schedule part of a divorce decree was basically “the children reside with Mom and Dad shall have ‘reasonable access’ to the children.” We don’t do that anymore and for good reason.

STYLE POINT: Parents do not have “visitation” with their children.

Parents have “possession” of their children and this is called “parenting time” whether it is with the home parent or the child’s-other-home parent, the co-parent.

Texas law specifically requires courts not to take into account the sex of a parent when making determinations within the parenting plan. To be sure there is old case law that came out of a world where many women didn’t work outside the home and many men had little to do within the household. Today, the courts are going to look at who has been doing what for the children in your household and what each parent’s plans for the children are when determining allocation of authority and the schedule.  In determining who may be appointed the home parent, the court often seeks to determine who has been the child's primary caregiver.  This standard commonly goes with the Standard Possession Order in the Code, which is still presumed to be in the best interests of children. 

Now, however, in households with both parents working outside the home and in cases where parents have shared more of the responsibilities of direct child rearing, it is sometimes more difficult to determine a primary caregiver and perhaps less emphasis is given that analysis in those cases.  Courts can and do make orders with schedules reflecting the needs of the children and the relative abilities of the parents on a case by case basis.  Since no judge will ever know your family as well as you do, mediation is an excellent place to sit down and work out many of these details.    

In cases where there is no agreement, the trial court is going to listen to the evidence and create your parenting plan according to what it finds to be in the best interests of your child.

The Texas Supreme Court in 1976 in the case of Holley v. Adams outlined a non-exhaustive list of factors the trial courts should consider when deciding the best interests of a child. They are commonly called the Texas Holley Factors and they are as follows:

1. the desires of the child
2. the emotional and physical needs of the child now and in the future
3. the emotional and physical danger to the child now and in the future
4. the parenting abilities of the individuals seeking custody
5. the programs available to assist those individuals to promote the best interest of the child
6. the plans for the child by these individuals or by the agency seeking custody
7. the stability of the home or proposed placement
8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one
9. any excuse for the acts or omissions of the parent

PRO TIP: Make a plan and don’t be a jerk.

These factors affect the residential schedule in the same way they affect allocation of authority. They affect baseline determinations and color the tone and tenor of other orders that follow. So what’s the presumed schedule?

Under links and forms, I’m posting a pdf of the Standard Possession Order (“SPO”) found in the Texas Family Code. The short version of that is the children are launched to school from with home parent and see the co-parent every Thursday and on the weekends following the first, third, and fifth Friday of every month during the school year, plus shared holidays and summers.

The SPO was crafted by the legislature to balance parenting time into a predictable rhythm for parents and their children. It assumes a child on a public school schedule. The law asks judges to presume that this schedule is in the best interests of children, but it doesn’t require the court to order it. Parents are free to agree on or advocate for schedules that are more suitable for the specific needs of their children, all things considered.

The age of the children matters. For small children who are not yet in school the court makes an order customized to that child taking into account the circumstances of the parents and the needs of the children. Child development specialists are telling us that frequency of contact between parents and very small children is more important than duration of that contact.

QUESTION:  My daughter is about to be 12 years old.  I've heard children get to decide where they live when they turn twelve.  Is this true?

ANSWER:  No.  A judge in a hearing or trial without a jury is required to interview a child 12 and older privately if asked to do so and may interview children younger than twelve to hear the child's wishes as to conservatorship and the parent with the right to determine that child's residence, but the court is not bound by the child's wishes in any way, regardless of the child's age.  The Court's discretion to make all these decisions in the best interests of the child remains undiminished.  The judge makes the final call based on all the factors above.

Purposefully drafted, custom schedules are in vogue.  I have seen courts order a 2-2-3 schedule for children of many ages.  That is to say Parent 1 has every Monday and Tuesday, Parent 2 every Wednesday and Thursday, and the parents alternate Thursday, Friday and Saturday so that each parent has a consecutive five days every other week.  I’ve also seen courts ratify agreements for older children to have week-on, week-off time between the parents’ houses. Some people think that “fifty fifty” schedule means no child support.  That is not necessarily the case.