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In 2017, 25 states considered legislation to move away from traditional parenting schedules and toward equal or shared possession schedules. In 2018 and 2019, Texas lawmakers proposed bills allowing for equal possession of children for parents of divorce.

Shared parenting is slowly increasing nationwide, with Kentucky becoming the first state in 2018 to establish a legal presumption in favor of equal possession of the children. Many studies have been globally conducted which establish that children benefit significantly from shared parenting, and that they fare better physically, mentally, academically and socially compared with those children who experience a more traditional, unequal custody arrangement.

The law in Texas currently provides that there is a rebuttable presumption that the appointment of both parents as Joint Managing Conservators is in the best interest of the children. Further, it is the public policy of this state to encourage parents to share in the rights and duties of raising their children after divorce, and many of these parents, with the assistance of skilled counsel, negotiate and enter into agreed parenting plans that provide for equal or near-equal possession and access to the parties' children.

The most typical possession schedules opted for by parents in this regard include a week on, week off schedule; or what is known as a “2, 2, 3 schedule,” which occurs when each parent selects two fixed days per week (usually Monday and Tuesday, or Wednesday and Thursday of each week), as well as alternating weekends.

However, in the absence of an agreed parenting plan in Texas, at present the law still maintains that if the parents cannot reach an agreement, a court must appoint one party as the parent having the right to designate the primary residence of the child, with the other parent being awarded the right to possession of the child.

The Texas Family Code mandates that, for children over the age of 3, the Standard Possession Order is the minimum amount of possession to be awarded to the possessory (nonprimary) parent unless evidence is presented to the contrary establishing why the SPO is not in the child's best interest.

The SPO generally allows for the nonprimary parent to have possession of the children on the first, third and fifth weekends of each month; Thursday of each week during the school year; 30 days in the summer, and equal holiday possession. In a calendar year, this possession order does not equate to 50/50 possession, but rather the primary parent receives 67%, and the possessory parent receives 33% of the time with the children.

Keep in mind that the Family Code provides that this is the minimum amount of possession to be awarded to a parent in a divorce or suit affecting parent-child relationship. Therefore, if you are advocating for your client to receive equal possession absent an amendment to the current law, it's important to zealously hone the facts of your case to the degree that you trump the current presumption that the SPO is in the best interest of the child.

It is widely apparent that with the national trend giving due consideration for 50/50 parenting, even without a current amendment to the Texas statute setting forth the SPO at present, at least some Texas courts appear to be more comfortable in ordering equal possession when the facts of the case support the ruling.

When seeking such a ruling for your client, remember that Section 153.256 of the Texas Family Code provides that the court, in addition to considering the age, developmental status, circumstances, needs and best interest of the child, the court may consider the circumstances of the parents as well as “any other relevant factor.”

Knowing this, it's important to fully explore with your client the parenting history and the involvement by each party with the child; each parent's work/travel schedule, future availability and overall financial and physical ability to care for the child; the desires of both the child and the parties; the home environment provided by each parent; and the ability and desire of each parent to genuinely co-parent with the other parent.

Know your judge and his or her proclivities as well, but don't give up if you fall into a court that is not known for supporting equal possession. The U.S. Department of Labor found that in 2018, among married-couple families, both parents were employed in 48.8% of families, and it is likely that this percentage will continue to increase in the future.

With the increase in dual-income families and need for both parents to work outside the home, as well as significant research supporting the premise that children develop and advance better when they have equal access to each parent, it seems likely that more courts in Texas will begin to give real consideration to nontraditional parenting plans and schedules that provide for equal possession and access.

Carson Epes Steinbauer is a partner with Shackelford, Bowen, McKinley & Norton. She is board certified in family law by the Texas Board of Legal Specialization and regularly represents clients in high-net-worth divorces, custody suits, interstate jurisdictional disputes, prenuptial and postnuptial agreement drafting and litigation, and termination and adoption cases.