By Haley K. Burnside
One of the first questions I hear from parents considering divorce is:
“What schedule will I have with my kids?”
It is a completely understandable question, but it is also one of the hardest to answer in a short conversation because custody cases are incredibly fact-specific. There is no formula that automatically determines which parent gets more time with the children.
That said, there is one concept that influences almost every custody case.
The status quo.
Understanding what that means, and why it matters, can help you better understand how courts approach custody decisions.
Every Custody Case Starts with a Possession Schedule
When parents separate, the court will establish a possession schedule that determines when each parent will have the children. The most common schedule is the Standard Possession Order with Elections, sometimes nicknamed the “Expanded Standard Possession Order” which is the schedule codified in Chapter 153 of the Texas Family Code.
At a very, very high level, a standard schedule often includes:
- First, third, and fifth weekends.
- A weekday possession during the school year, specifically on Thursday.
- Split holidays that also alternate between the parents each year.
- Every other spring break.
- A summer schedule that gives both parents significant time with the children.
That is, of course, a very simplified explanation of a schedule that is multiple pages long. The actual Standard Possession Order is much more detailed and addresses everything from holiday exchanges to summer elections and transportation responsibilities.
Every case is different, and sometimes families agree to schedules that differ from the standard order.
Which parent gets which schedule goes hand in hand with another important question, which is:
Which parent is more likely to be designated as the parent with the primary right to determine the child’s residence?
When someone tells me they want “primary custody” of the children, I start asking questions about what life for the children already looks like. For example:
- Who takes the children to school?
- Who picks them up?
- Who makes sure they brush their teeth?
- Who prepares their lunches?
- Who schedules doctor’s appointments?
- Who attends those appointments?
- Who communicates with the teachers?
- Who enrolled the children in school?
- Who signs them up for extracurricular activities?
- Who helps with homework?
- Who generally manages the day-to-day responsibilities of raising the children?
These questions are not meant to judge either parent. They help identify what the children’s lives currently look like.
Courts Look at the Reality of the Family
In many families, parents divide responsibilities. One parent may work longer hours to provide financially while the other handles more of the daily parenting responsibilities. That arrangement is common and often works well during the marriage.
The challenge is that when a custody dispute arises, the court can only evaluate the facts that actually exist. If one parent has historically handled most of the day-to-day caregiving, that becomes part of the status quo.
That does not mean the other parent is a bad parent.
It simply means the court is looking at the child’s established routine and determining whether there is a good reason to change it.
If You Want to Change the Status Quo, There Usually Needs to Be a Reason
Many parents tell me: “I know that’s how we’ve always done it, but after the divorce I want to be much more involved.” That may be a genuine desire, and there is nothing wrong with wanting to become a more active parent.
The difficulty is that courts generally want stability for children.
If someone is asking the court to significantly change the existing parenting arrangement, one of the natural questions becomes:
Why should things change now?
The answer cannot simply be, “Because I want them to.”
There typically needs to be a compelling reason for the court to depart from the arrangement that has been working for the children. For example, is there a safety concern for the children? For example, has the historical caregiver developed an addiction that creates an unsafe environment for the children?
Has something happened that put the children in danger while in their care? These are obviously compelling reasons to seek a change to the status quo.
What is the status quo is an equal division of responsibilities?
It is becoming increasingly common for parent to divide the parental responsibilities equally. For example, both people work a 9 to 5 job, they alternate taking the children to school, the alternative doctor’s appointments, both go to all activities, etc.
When both parents are provably on equal footing in regards to the child care responsibilities, there is a stronger case for a schedule that divides the time with the children equally. It depends on the individual case, the people involved, and the judge deciding your case.
If Divorce May Be Coming, Start Thinking About Your Role Now
Sometimes people recognize that their current role in the family is different from the role they would want after a divorce. If you are fortunate enough to recognize that before litigation begins, it is worth thinking carefully about your involvement with your children.
That does not mean manufacturing evidence or trying to “game the system.” It means becoming the kind of parent you genuinely want to be.
Become involved in the daily routines.
Know your children’s teachers.
Know their doctors.
Attend their activities.
Help with homework.
Participate in the ordinary moments that make up a child’s life.
Those everyday interactions often matter far more than grand gestures.
Custody Cases Are Built on Facts, Not Magic
People sometimes hope that a lawyer can simply walk into court and fix everything. I wish it worked that way.
My job is to develop a strategy, present the strongest possible case, and help clients understand their options. But I cannot change the history of who has been caring for the children. Courts decide custody cases based on evidence.
Sometimes there are opportunities to improve a client’s position. Other times, the facts simply are what they are, and it is important to recognize that reality when setting expectations.
The Bottom Line
Every custody case is unique, and there is no substitute for reviewing the specific facts of your situation.
However, one principle consistently appears in Texas custody cases.
The court starts by looking at the child’s existing life.
The parent who has historically handled the day-to-day responsibilities often begins with an advantage because the court generally seeks to preserve stability for the child whenever possible.
If you believe custody may become an issue, understanding your family’s current status quo, and honestly evaluating your role within it, is one of the most important first steps you can take. There may be compelling reasons, such as a safety concern, that require the status quo to be changed.