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Shifts we are seeing in post-separation parenting plans

by Houston Divorce Attorney Sam M. “Trey” Yates, III

Family law attorneys, family court judges and therapists, along with academia, scholars and researchers are all currently grappling with a shift taking place in the area of creating shared parenting plans for divorcing spouses. Since about 2000, for a number of reasons and/or justifications, there has been an increase in child possession plans that emphasize continuous and frequent contact with both parents — or joint physical custody (JPC).

Current data generally supports that shared parenting families are on the rise and that children are benefitting from this new family form. However, some JPC plans or schedules seek to satisfy a true 50/50 possession time for each parent; and this is often proving to be unrealistic and problematic for parents and children alike. In the past, any child possession schedule which gave the non-primary parent 35 percent of the time or more was considered shared possession. Now, a growing, popular consensus of opinion in the field is that children, including infants and adolescents, are best served when they maintain strong and secure attachments with both parents. At the same time, however, academics, scholars and researchers continue to argue about the risk and benefits of a strict 50/50 JPC. This debate, which has shown up in the media and on the Internet, has gained credibility to the point where it is influencing state legislatures and policymakers.

Here are examples of how a true 50/50 JPC possession order might be expressed in an actual schedule:

  1. A child/children spend on week with one parent in his or her residence and the following week with the other in his or her residence;
  2. A 2-2-3 (or 2-2-5) plan designates every Monday and Tuesday to one parent and every Wednesday and Thursday to the other, with alternate weekends rotating from one parent to the other;
  3. A “nesting” plan is where a child/children remain in the same home, while the parents take turns staying one week on and one week off in the home, yet maintain separate, alternate residences.

Multiple forces are fueling the push toward JPC 50/50 schedules. Most researchers agree that a child can be attached to more than one caretaker, moving away from the conviction that very young children should spend more time with their mothers. Groups advocating father’s rights are also proponents of this shift as society progresses toward a more egalitarian and scientifically supported view that both parents should be involved in parenting as much as is reasonably possible.

In Texas, the Standard Possession Order (SPO) is the prevailing rule, thus the “norm.” So, if a client pushes for JPC, or a 50/50 schedule, attorneys must present enough evidence to show a judge why he or she should approve a departure from this standard. This requires a whole new level of exploration into numerous factors such as the age of the child, if there are special needs or developmental reasons at play, if communication between parents is good, the distance between parents, the child’s preference, and possibly many other factors. And, then there is the mere practicality of working out schedules for the real world. We also face the reality that there is no true definitive scientific evidence that will support arguments for or against a true 50/50 possession schedules.

In high conflict divorces, most family law attorneys such as ourselves, will strive for the possession schedule that supports the Best Interest of the Child, which we try to balance against the desires of our clients. Truthfully, there are merits to everyone’s arguments to increasing possession and access time for both parents, but not at the expense of the children. Yet, this can be another difficult hurdle to jump since one parent’s definition of “best interest of the children” may not be the same as the other parent’s definition, for many reasons.

Based on our years in family law and our experience with these cases, the current SPO or expanded SPO in Texas continues to fit and work well for a large number of divorcing families. It does not fit them all. In our view, for many families, a 50/50 possession schedule is simply not practically attainable once such a schedule is outlined. We also believe a 50/50 possession schedule necessitates a healthy co-parenting relationship, which few couples can demonstrate. So, until we have definitive scientific evidence to the contrary, we believe the SPO will work for more families than JPC or a 50/50 schedule.

We do have scientific evidence that joint physical possession is linked to better outcomes than arrangements in which children have less than 35 percent time with the non-primary parent. Further evidence exists to support that any arrangement which reduces conflict, including limited exchanges, should be considered. We expect that as more jurisdictions promote shared parenting arrangements, there will be more opportunities to conduct research and gather data on what conditions best facilitate optimal shared parenting schedules and plans. Clearly, the increase in joint physical custody arrangements is an important change to watch now and in the years ahead.

For further discussion on this topic with a divorce attorney in Houston, or to answer your questions about 50/50 possession arrangements, contact us online or call our office to schedule a consultation 713.932.7177..

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