It is becoming more and more common for clients who contact me seeking a divorce or custody modification to request options for obtaining equal parenting time, commonly referred to as a fifty-fifty possession order. While possession orders that provide for equal parenting time have become more common over the past ten years, they are no the standard possession order in the State of Texas and are not specifically provided for in the Texas Family Code. That is not to say that it is not possible to obtain a fifty-fifty possession order, but doing so does require overcoming some presumptions. Since the possession order provided in the Texas Family Code is a Standard Possession Order, courts presume that it is appropriate for one parent to be awarded the right to designate the primary residence of the child and the other parent to visit with the child based on a Standard Possession Order.
The easiest way to overcome this presumption is to show that both parents have agreed to an equal parenting plan. For the most part, District Courts encourage parties to a lawsuit to reach agreements regarding their children and property and are hesitant to override those agreements unless they are considered to be inappropriate or detrimental to the children.
The second method of overcoming the presumption that a Standard Possession Order is in the best interest of the children is to show the court that a Standard Possession Order would not be in the best interest of the children. This can be done by showing that the children are accustomed to spending large, relatively equal periods of time with each parent and that altering or restricting the amount of time the children are able to spend with one parent would be disruptive or detrimental to them. This argument is only plausible when both parents have been actively involved with the children over the course of their lives, specifically within the last six months to a year, and that neither parent presents a danger to the children or is unavailable to devote time to the children on a consistent basis. It is also helpful to show the court that the parents have been following a fifty-fifty possession order recently, either by agreement or based on a court order. Such evidence establishes that the children are accustomed to sharing equal time with each parent and makes it more likely that the court will order that the fifty-fifty possession order continue.
Finally, it is important to show that the parents have a civil relationship that will allow them to work together to parent the children on a relatively amicable basis. A possession order that allows for equal parenting time typically requires more cooperation and communication between the parents than a Standard Possession Order would require.
There are some obvious barriers to obtaining a possession order providing for equal parenting time. If one parent travels out of town on a regular basis, they are not likely to receive a fifty-fifty possession order from the court, since they will most likely not be available to exercise all of the available possession time. The same is true when a parent works long hours, particularly if those hours occur on nights and weekends, which could require that the children spend large periods of time with a third-party caregiver. It is also unlikely that a parent will obtain a fifty-fifty possession order from the court if they cannot provide testimony or evidence that shows that they have been a primary or equal caregiver for the children in the past. Again, the court will strive to maintain a schedule that mirrors the circumstances that the children are accustomed to as much as possible. As previously addressed, it is also important to show that the parent requesting the fifty-fifty possession order is ready and willing to work with the other parent in a cooperative manner in the best interest of the children.