September 1 – Legislative Changes Go Into Effect!

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Over the next week, the Family Law Section will post news about the new laws going into effect. These changes will just be a summary. For DETAILED changes, please review the materials provided during Advanced Family Law by Kathy Kinser or the Legislative Update that was presented via a TexasBarCLE webcast earlier in the summer.

First up is the new possession schedule amendments.

By enacting S.B. 1936 (Hughes/Cook), the Legislature responded to calls for “equal parenting” or “50/50” custody orders. The bill will apply to custody cases pending on September 1, 2021, and those filed on or after that date.

In summary:

If the possessory conservator (“PC”) lives 50 miles or less from the child’s primary residence, the Alternative Beginning and Ending Times (Expanded Standard Possession Order “ESPO”) will apply, unless the PC opts out of one or more of the alternative beginning and ending times specified in §153.317(a), Family Code.

This will provide the PC with a floor of 46% of possession time. It does so by using schedules designed to meet children’s needs, and with the statutes which litigants, lawyers, and judges are already familiar.

A court can override the new law if it is not in the best interest of the child. Among the reasons the ESPO might not be in the child’s best interest, as stated in the statute, are:
(1) The ESPO is unworkable or inappropriate given the circumstances of the area or the parties. (For example: A court could consider how the likely travel times between residences would affect the child’s schedule. Or, one or both parents might not have access to vehicles and there is no public transportation, making it unlikely the parents could comply.)
(2) Before the suit, the PC had not frequently and continuously exercised parental rights and duties, precluding someone who is a biological parent but is actually a stranger to the child from automatically having a nearly 50/50 custody order.

Increasing parenting time means increased responsibility. A PC who lives 50 miles or less from the child will have the responsibility of understanding the law and opting out of his or her rights to possession so the needs of the child are met, rather than opting in as the law previously provided.

Additionally, this change in the law is NOT (by itself) a basis for material and substantial change in order for a conservator to file a modification.

When the PC lives more than 50 but not more than 100 miles from the child’s primary residence, the law will not change: that parent may still opt into the ESPO–but it will not be automatic.