Published by Ben Beveridge | December 3, 2023 | Firm News

In the realm of family law, the desire for a 50/50 custody arrangement is a common theme, often sparked by misconceptions. In Texas, the law asserts that custody decisions should not be rooted in gender bias, but the state does not automatically guarantee a 50/50 split. Let’s delve into the intricacies of child custody in Texas and understand what it truly entails.

Texas Family Law: No Presumption of 50/50 Custody

Contrary to popular belief, Texas is not a 50/50 child custody state. While the courts are mandated not to base decisions on gender, an equal parenting schedule is not a legal presumption or starting point. Achieving a possession schedule where both spouses have an equal share of time with their child is possible but not guaranteed.

Courts in Texas recognize that a 50/50 custody arrangement is viable only under specific circumstances. Factors such as the ability of parents to cooperate, proximity of residences, and the best interests of the child take precedence. The court evaluates each parent’s capacity to be present and engaged in the child’s life.

Navigating the Legal Landscape: Texas Family Code Section 153.135

When contemplating a 50/50 split through legal proceedings, it’s essential to understand Texas Family Code Section 153.135. This section clarifies that joint managing conservatorship doesn’t mandate equal or nearly equal physical possession of the child for each joint conservator.

Standard Possession Order (SPO): A Presumption of Best Interest

The Standard Possession Order (SPO) is often presumed to be in the best interest of the child. Texas Family Code Section 153.252 establishes a rebuttable presumption that the SPO provides reasonable minimum possession and is in the child’s best interest. However, there are electives available, allowing a conservator to alter the standard order with the court’s approval.

Alternative Schedules and Court Discretion

Under Section 153.253 of the Texas Family Code, the court has the authority to grant alternative possession schedules if the standard order is deemed unworkable due to special circumstances. However, the court is still required to grant periods of possession as similar as possible to those in the standard order.

Agreement Trumps Order: Flexibility in Possession

Parents have the freedom to agree on possession schedules outside the standard order. The court order serves as a tiebreaker only when mutual agreement is absent.

Children Under Three: Tailored Orders

For children under three, there’s no presumptive visitation order. The court, under Section 153.254, creates an order based on various factors, including caregiving history, impact on the child, and the physical, medical, emotional, economic, and social conditions of the parties.

Dispelling Child Support Myths: Equal Time Doesn’t Equal No Support

Despite common misconceptions, joint managing conservatorship doesn’t eliminate the possibility of child support. Texas Family Code Section 153.138 clarifies that the court can order a joint managing conservator to pay child support to another, emphasizing the paramount concern for the child’s best interests.

Mediation: A Path to 50/50 Agreement

Achieving a 50/50 split is often smoother through mediation. When parents agree in mediation, the court system readily accepts their arrangement, provided it aligns with the child’s best interests.

Factors Influencing 50/50 Schedules: The Realities

The practicality of a 50/50 custody schedule depends on various factors. Judges scrutinize whether both parents are genuinely equipped for co-parenting, living proximity, and the intention to collaborate in raising the child. The court may favor the primary conservatorship of a parent who can provide stability, especially if the other parent’s work or travel commitments pose challenges.

Flexibility in Arrangements: The 2-2-3 Model and More

Common 50/50 possession schedules include alternating weeks, Thursday through Sunday exchanges, and the 2-2-3 model. Each has its pros and cons, and the choice depends on the family’s unique circumstances.

Challenges Over Time: Changing Dynamics and Needs

A 50/50 schedule may face challenges over time. Relocations, evolving needs, and changing circumstances can render the arrangement unworkable. Courts may intervene to modify schedules based on the child’s best interests.

Conclusion: Balancing Desire with Reality

While a 50/50 custody schedule may be a desired outcome for many parents, achieving this balance requires careful consideration. The court prioritizes the child’s best interests, necessitating parents to demonstrate their commitment to co-parenting and the child’s well-being.

Understanding the legal nuances and presenting a case founded on genuine dedication to parenting can influence the court’s decision. Rather than assuming a one-size-fits-all approach, it’s crucial to weigh the practicality and suitability of a 50/50 arrangement for the unique dynamics of each family. As the legal landscape evolves, the court remains committed to fostering arrangements that align with the best interests of the child.