Visitation and the Six O'Clock Hour
The 81st Texas Legislature has adjourned, having passed two major family law bills. The bills are Senate Bill 866 and House Bill 1012. They make many changes to Texas family law. This post is the first of several to examine these bills' effects.
Beginning with section 6, House Bill 1012 implements changes to the Standard Possession Order. An important change is setting out a default time for possession exchanges of 6:00 p.m.
In the past, for example, a possessory conservator could elect that weekend possession begin at the time a child's school is regularly dismissed. Tex. Fam. Code § 153.312(a)(1) (2007). Other parts of the Family Code, although allowing for possession, did not specify a time. E.g., Tex. Fam. Code § 153.312(b)(2)(A) (2007) (summer possession upon written notice). Now all these periods begin or end at a default time of 6:00 p.m.
How is the default avoided? A conservator must request the court to impose alternative beginning and ending possession times per amended Tex. Fam. Code § 153.317 (effective September 1, 2009) (reprinted in full below). Upon request, the court must alter the standard possession order - unless the court finds that alteration would not be in the child's best interest - to allow possession to begin or end when school lets out or resumes for the following periods of possession:
- Weekends
- Thursdays
- Spring break
- Christmas school vacation
- Thanksgiving
- Mother's Day
Father's Day is the third Sunday in June. School is not in session then, but Father's Day possession can be extended to 8:00 a.m. on the Monday after Father's Day.
Specifying 6:00 p.m. as the exchange time is helpful to parents, lawyers and the courts because now there will be a default time for changes of possession. But if a conservator had the right to elect the alternative provisions before, why did the legislature change those parts of the Family Code? Apparently, the purpose is to allow the court more control over when possession occurs, even though a court already has extensive power over possession.
There is a subtle mismatch between the House Committee Report on House Bill 1012 and the text of new section 153.317. According to the House Committee Report, if a conservator elects the alternative possession beginning and ending times, "and the court finds the election is in the best interest of the child, then the court must change the start and end times to [the] specified, alternative times stated in the statute." (emphasis added). But the statute reads that the court must change the start and end times, upon a conservator's request, "unless the court finds that the election is not in the best interest of the child." (emphasis added).
Which conservator bears the burden of proof? Is the burden to show that alternative times are in the child's best interest or are not in the child's best interest?
New Texas Family Code § 153.317 (effective September 1, 2009)
ALTERNATIVE BEGINNING AND ENDING POSSESSION TIMES
(a) If elected by a conservator, the court shall alter the standard possession order under Sections 153.312, 153.314, and 153.315 to provide for one or more of the following alternative beginning and ending possession times for the described periods of possession, unless the court finds that the election is not in the best interest of the child:
(1) for weekend periods of possession under Section 153.312(a)(1) during the regular school term:
(A) beginning at the time the child's school is regularly dismissed; or
(B) ending at the time the child's school resumes after the weekend;
(2) for Thursday periods of possession under Section 153.312(a)(2):
(A) beginning at the time the child's school is regularly dismissed; or
(B) ending at the time the child's school resumes on Friday;
(3) for spring vacation periods of possession under Section 153.312(b)(1), beginning at the time the child's school is dismissed
for those vacations;
(4) for Christmas school vacation periods of possession under Section 153.314(1), beginning at the time the child's school is dismissed for the vacation;
(5) for Thanksgiving holiday periods of possession under Section 153.314(3), beginning at the time the child's school is dismissed for the holiday;
(6) for Father's Day periods of possession under Section 153.314(5), ending at 8 a.m. on the Monday after Father's Day weekend;
(7) for Mother's Day periods of possession under Section 153.314(6):
(A) beginning at the time the child's school is regularly dismissed on the Friday preceding Mother's Day; or
(B) ending at the time the child's school resumes after Mother's Day; or
(8) for weekend periods of possession that are extended under Section 153.315(b) by a student holiday or teacher in-service day that falls on a Friday, beginning at the time the child's school is regularly dismissed on Thursday.
(b) A conservator must make an election under Subsection (a) before or at the time of the rendition of a possession order. The election may be made:
(1) in a written document filed with the court; or
(2) through an oral statement made in open court on the record.
