Standard Possession Order in Texas

Custody cases often come down to a fight over who is ‘primary’ over the children. More accurately referred to as which parent has the ‘exclusive right to designate the primary residence of the children.’ People spend thousands and thousands of dollars to fight over the primary designation. Often, I think they believe they are getting significantly more time with the kids.. Unfortunately, they’re mistaken.

The ‘Standard Possession Order’ for the ‘non-custodial’ parent is laid out in Section 153.3101 of the Texas Family Code.  This is the schedule that is presumed to be in the best interest of the child(ren). Essentially, if you’re within 50 miles of the ‘custodial’ parent, you’re entitled to have possession of the child(ren) during the school year every first, third and fifth weekend from the time school is released until school resumes the following week, whether that’s Monday or Tuesday if there’s a holiday on the following Monday. In addition, the ‘non-custodial’ parent receives every Thursday from when school ends until school resumes the following Friday.  The parents split summer and holidays evenly.  Doing the math, it works out to about 48% to 52% of the time between the parents if you take out time for school and time the children are asleep.

This wasn’t always the case.  The current ‘standard possession order’ went into effect in 2021 as the presumed order.  Prior to that, the ‘standard possession order’ was far more limited. Holidays and summers were the same. However, the school year was much less. Thursdays were only 6 p.m. to 8 p.m. Weekends were Friday at 6 p.m. to Sundays at 6 p.m.

So what are Parent fighting for?  

Its not the schedule as we already established. It’s also probably not decision-making authority over the children. The only decision a ‘primary’ parent necessarily gets a superior right to than the ‘non-custodial’ aren’t is which school district the child is in.  Medical, educational, psychiatric, psychological decisions are all presumed ‘independent,’ meaning either parent can make those decisions equally.

So what is ‘primary custody about? It’s money. The Family Code also presumes that child support from the ‘non-custodial’ parent to the ‘custodial’ parent to be the guideline amount even if they ‘non-custodial parent is getting the children 48% of the time. The max guideline support for one child is $1,840 monthly.  That number gets higher with more children.  Its worth noting that the child support formula has not changed as the visitation schedule has.  It perhaps makes more sense for the ‘non-custodial’ parent to be paying a high child support figure when they only have the child 35% of the time or so.  But when it’s almost even, you’d expect that number to change, but his hasn’t.

Does this mean that every parent requesting primary custody is a money grubbing greedy jerk who doesn’t care about their children?  Absolutely not.  Often times, people are simply misinformed. They don’t realize that the decision making will likely be equal. The schedule will be very close to equal. And that all they’re really fighting for is a child support figure and a couple extra over-nights unless there are more severe circumstances that break the presumptions.

When gearing up for a custody fight its critical to be well-informed of the law, the presumptions and likely outcomes.  I’ve had countless cases that could have been fully avoided if the parties had been much better informed.  My suggestion is to get away from worrying about titles and designations and focus more on the specific scheduling, financial and emotional needs of your children when going through a custody fight.  Judges will be far more receptive to arguments that fit the children’s needs rather than arguments that focus on titles.

Beauregard Driller Fiegel

Attorney, President

Beauregard Fiegel was born to Lt. Col. Driller Fiegel and Sondi Lynn Fiegel, MBA-HCM, RN, LSSGE on March 31, 1985 in Ruston, Louisiana. He graduated from Warner Robins High School in Warner Robins, Georgia in 2003. From there he went to Louisiana State University in Baton Rouge, Louisiana. He graduated in 2007 with two separate undergraduate degrees; a bachelor’s of arts degree in Philosophy with a concentration in Religious Studies and a bachelor’s of arts degree in Political Science with a concentration in Political Theory.