Texas law has simplified one of the more contentious issues in divorce and child custody cases--namely, the possession and access to children--by developing the Standard Possession Order. Once the parties agree upon or the court appoints one parent as the conservator with the exclusive right to designate the primary residence of the child, the Standard Possession Order provides "default" guidelines for splitting possession and access to children among joint managing conservators who reside in different locations. Obviously, the children cannot reside in both residences at the same time, so the Standard Possession Order delineates a standard schedule for possession of and access to the children.

Although some might consider a pre-fab, cookie-cutter approach to possession and access a rather insensitive way of approaching such a broad and dynamic issue as possession and access to a child, experience has proven that the Standard Possession Order avoids a great deal of unnecessary disputes between parents who already (due to a divorce or even a non-marital break-up) are pre-disposed to fight each other, if only on principle. Instead of allowing the parties' differences to invade their relationships with the children, the Standard Possession Order lays down a default position so that the parties need not fight about it. A judge may still deviate from the Standard Possession Order upon making specific findings that doing so would be in the child's best interest. The parties may also voluntarily deviate from that schedule by agreement, even after the order is entered. Nonetheless, the Standard Possession Order does alleviate some of the most contentious issues in divorce and child custody cases.

No "Visitation" in Texas

Note that Texas law uses the terms "possession and access" and not "custody" or "visitation" when describing a child's schedule between joint managing conservators. Like the choice of the term "conservatorship" instead of "custody," this choice in terminology is not accidental or without consequence. The term "visitation" is not used in Texas because "visitation" mistakenly implies that the parent who is not the primary caretaker holds an inferior role in a child's life: as if the non-primary caretaker is just a "visitor" in the child's life. "Visitation" also mistakenly implies that the "visit" with the child "belongs to" the parent, and that the "visiting" parent must abide by conditions (like travel to and from "visitation") in order to receive his or her "visitation." Texas law presumes that it is in the child's best interest that both parents be appointed joint managing conservators with equally-significant roles in the child's life and thus avoids using terms that mistakenly imply a superiority of one parent over the other.

Instead, Texas law speaks in terms of equal-status "periods of possession" of a child among joint managing conservators, regardless of whether a child physically spends more or less time with either parent. The parent who receives the exclusive right to designate the primary residence of the child might enjoy more physical time with the child under this schedule, but otherwise stands on equal footing with the other parent. Although the parties may agree or a court may order otherwise, both parents generally must share the burdens associated with splitting possession and access to their children. This emphasis on equal-standing among primary and non-primary parents is essential to avoiding much of the unnecessary in-fighting between parents in divorce or non-marital custody cases, refocusing the priority from one or the other parents to the children. Both parents should remain equally important to the child, so they both merely have periods of possession with the child, not custody of or visitation with the child.

Click here for a related discussion of Child Custody/Conservatorship in Texas.