Transcript

Desiree Hemphill: I think people have to understand, you know, it’s best to really consider what kiddo needs all around, you know, both parents as well as of course their care. So it’s more likely going to be like you said shorter consistent times, as long as kiddo is being cared for, the court is probably going to order it.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today I’m excited to welcome our own Desiree Hemphill to the Texas Family Law Insiders podcast. Desiree is an associate attorney at the Draper Law Firm. She’s a skilled family law litigator who prides herself on helping clients through the most difficult times in their lives.

Desiree has a bachelor’s degree in public administration and a master’s in legal studies from Texas State University. She went on to receive her JD from Texas Tech School of Law and 2018. Desiree is active in the Denton County Bar Association and the Family Law Section of the Denton County Bar. Thank you so much for hopping on with me today.

Desiree: Thank you for having me. Happy to be here.

Holly: So why don’t you tell us a little bit about your background.

Desiree: So I originally started my career in law as a paralegal down in San Marcos, Texas, and eventually went on to go to law school in Lubbock. I was involved in the Family Law Clinic at Texas Tech School of Law where we represented basically clients who can’t afford private counsel, and we were their student attorneys on any generally uncontested matters. And that’s how I got my start in family law.

Holly: What is your favorite thing about practicing family law?

Desiree: I would have to say my favorite thing is seeing the clients evolve. So normally, when they come to us, they are, you know, downtrodden, they’ve had years of abuse, financial, physical, emotional, whatever it may have been. And they become empowered by the divorce process of, you know, realizing this doesn’t have to be my forever, there is a way out of this. So I love to see them go from when they first come to us to whatever that decree is signed, and they realize that they are free and no longer have to live that life. That’s my favorite part.

Holly: So today, we’re gonna talk about something that can be a little bit back to basics in certain respects, but in other respects, gets into a little more nuanced art in family law, and that is possession schedules. So there are certainly the more common possession schedules that everybody knows, and we’re going to talk about the nuts and bolts of those.

But there are also people and families where those possession schedules do not work for their lives for one reason or another. So we’re going to talk about some of those issues and solutions for dealing with families with those unique needs. So to start out with, the most common schedule we see in family law is obviously the standard possession order.

The only possession schedule in the code. And since we have some, we might have some people listening that are new to family law. I kind of want to go through the nuts and bolts of what is a standard possession order. So why don’t you talk to us about that.

Desiree: Of course. So in the Texas family code, we have the standard possession order for parties who live within 50 miles of each other. Previously, that used to be what’s called the expanded standard possession order. But now it’s been made, essentially required for anyone who lives within 50 miles.

And that gets you from Thursday when school is dismissed until Monday when school resumes on the first, third and fifth weekends. And then every Thursday from when school’s released until Friday, when school resumes. If parties live over 50 miles apart, but within 100 miles, then they go to what we used to call the standard.

And so that gets you from Friday at 6pm to Sunday at 6pm. And Thursdays from 6 to 8pm on the first, third and fifth and then every Thursday, from 6 to 8pm. All holidays are alternated. Summer, we have 30 day blocks. And then you just have to give your notification generally by April to let the other parent know your intended amount of time that you intend to take in the summer.

Holly: With that less than 50 miles. I know you mentioned it being required. So I wouldn’t say it’s necessarily required but it is the presumed minimum now under the family code that a parent should get. And I will say I have seen some really bad parents who have gotten expanded standard because it is the presumed minimum.

So I cannot even begin to describe the number of people that have, you know, consulted or been retained that think they’re going to get the other side significantly less than this expanded standard schedule. And the reality is unless you’ve got a serious alcoholism problem, drug addict, abuse, serious abuse, it’s really, really hard to do.

Now it can always be on my agreements, which sometimes does happen, because some people just, I guess, don’t care about spending all that time with their children. But you know, I kind of tell everyone assume it is going to be at least expanded standard for the other parent. Then we have one more, which would be the over 100 mile schedule. Can you talk about what that looks like and the options with that one?

Desiree: Yes. So if you’re over 100 miles apart, then you have two elections, essentially. So you can either elect one weekend per month that you get to have from Friday at six to Sunday at six, or you can elect to take the first, third and fifth each month. You cannot alternate month to month. Once you make your election that is your election. We want to keep things consistent for kiddos. So generally you have to pick one or the other whenever the time comes and stick to it.

Holly: So that one weekend a month thing has always really irked me, because I think you only have to give 14 days notice under the code. And if you’re the primary parent, how do you schedule your life, if you don’t know until 14 days in advance which weekend the other parent is going to have.

So you know, I personally think it’s a good idea maybe to tweak that to a specific weekend per month, or you know, a longer amount of notice so that people can plan and live their lives. You know, the older kids get more stuff they have going on. And the harder it is to just pluck a weekend out of the 14 days notice. One other difference with the 100 mile the over 100 mile schedule, well there’s a couple of differences.

We’ve got every spring break going to the non primary parent. And we also have longer summers. So with regular or expanded standard, we’re looking at the non primary parent having 30 days, and with over 100 miles, it jumps up to 42. Just trying to make up for obviously a parent that lives over 100 miles away is not going to be able to have as much time during the school year as somebody who lives close by.

So talk a little bit more, you briefly mentioned about alternating holidays. What holidays are specifically included? And what do those look like under any of these standard possession options?

Desiree: So under the Texas family code, we have Christmas, Thanksgiving, child’s birthday. And then we also have spring breaks that are considered as well. Spring breaks we alternate every other Thanksgiving, same. It’s every other year. So if you have Thanksgiving in one year, you’re not also going to have that week of Christmas.

Winter break, we actually under the Texas family code, it goes from whenever school is dismissed until whenever school resumes and the exchange date is December 28th at noon. That doesn’t always work for people with the constant changing in academic calendars depending on which district you’re in. But generally, that’s what the Texas Family Code says.

So if you have Thanksgiving, then you will have that second part of Christmas break or winter break. However you guys term it. And then same thing, if you have Christmas, then you won’t have Thanksgiving. So generally, those are the holidays. And some people will add in holidays, they’ll add in Halloween or Easter. But those are additions. That’s not what the Texas Family Code provides.

Holly: A couple others that are provided in the code will be Mother’s Day and Father’s Day, either just the day itself or the full weekend. Often Father’s Day is going to coincide with summer. And you have to look at that when you’re designating summer time. But yeah, there’s a minimal amount of holidays.

And then the one difference would be the spring break, always going to the non primary parent with over 100 miles. So one other thing we didn’t mention with these, all of these standard possession orders is that typically the non primary parent is going to get to tack on school holidays to their weekends.

So if it’s President’s Day is the day off, or MLK Day is the day off, and that ties to the weekend that the non primary parent would have, instead of ending Monday when school resumes, it’s either going to end on Monday at six o’clock or it might end Tuesday when school resumes just depends on how the particular order is written. So any other thoughts about the standard possession order before we move on?

Desiree: Just one thought on the holidays, I would suggest that people look at their orders. Because it depends too on when the holiday falls. Does it fall on that Monday or does it fall on that Friday before your period of possession starts? And that can help determine how the weekend is extended.

I’ve noticed a lot of people thinking, oh, there’s a holiday, I just automatically get more time. But you need to look at your order and be sure that you are in fact entitled to more time depending on if it’s a Friday or a Monday or a Thursday or whatever it may be.

Holly: So one schedule or one type of schedule that we’re seeing, I think more and more frequently would be 50/50 possession schedules. And, you know, a lot of potential clients or clients will ask about 50/50, and it is nowhere to be found in the family code. And in my experience, it’s usually very judge specific whether or not your particular case would ever end up with a 50/50 schedule, if you have a trial, or if you have a temporary orders hearing.

So I think it’s really important for family lawyers to as much as possible know the tendencies of the judges you practice in front of on this particular topic. Now, I know for me, anytime there’s a new judge, and I go to their, you know, meet and greet. These are my firm policy, or my core policies and all that when they take the bench.

I always when they asked for questions, I raise my hand, how do you feel about 50/50 schedule? And I’ve had judges specifically say you can tell your clients, I will never ever order a 50/50 schedule. And then I’ve heard other judges say, you know, I think when two parents can’t get along, we’re going to do a 50/50, because then they each have their own half, and they do what they want to do, and they don’t ever need to mingle.

So most people don’t go to trial, don’t have to have a hearing most people are able to settle. But knowing what your particular judge is likely to do with, you know, are they likely to do a 50/50 schedule or not, can really help you settle? Because if you want 50/50, and the other side isn’t willing to agree is that a hill worth dying on because your judge is never going to do it?

Now, obviously, there’s some counties in Texas where you don’t know who your judge is going to be until you show up that day. I think it’s really like Austin, or Travis County, Bexar County, I don’t know if there are any others. You can’t do that unless the judges are all on the same page.

But at least where we practice, they are not on the same page, typically. It’s very person to person how do they feel about this. So when we’re looking at a 50/50, and we’ll go into the different types of 50/50s that we see, but for all of those, what do we usually see with holidays?

Desiree: So generally you keep the same standard possession order holidays, for most 50/50 schedules. The one tweak that we do generally see is some people will split language as far as the winter break, and say it will be equally divided. So under the Texas family code, you exchange December 28th at noon.

Sometimes depending on your academic calendar, that’s not a half. One parent may end up having five days, whereas the other parent has 11 or 15 days depending on how the school wrote their academic calendar for that year. But generally, we’re going to exchange and do alternating standard possession order holidays as normal.

Holly: So I would say there are two most common schedules that we use when we’re putting a 50/50 into an order. And those would be week on week off. So that could be Sunday at six to Sunday at six or Monday when school starts until Monday when school starts. Or what we call a 2-2-5-5. Week on week off. Very easy to explain and understand. Tell us about what a 2-2-5-5 is and how that works.

Desiree: So in a 2-2-5-5, one parent will always have Monday, Tuesday, the other parent will always have Wednesday, Thursday, and then the parties will alternate weekends. And so that’s how we get to the five. So whichever parent ends up having that Monday, Tuesday, the weekend will wrap around to that Monday to make five days and then the same thing.

Whoever has that Wednesday Thursday will end up having Wednesday until that Monday time period. So some people call it like a 2-5 wrap or a 2-2-5-5. However you want to term it, it’s consistent in that someone is always going to have Monday Tuesday and someone’s always going to have Wednesday Thursday. So it’s nice.

Holly: So I usually see people liking this 2-2-5-5 for younger kids and preferring the week on week off for older kids because they find that it can be a lot of back and forth with a 2-2-5-5, but with younger and by younger we’re talking probably elementary school and younger than that. But a lot of people like it because elementary school students often will get you know homework assigned on Monday and it’s due on Friday.

So both parents can touch that during the week. Or, you know, if mom thinks Johnny should be taking piano lessons, and she has Monday, Tuesday, she can put that on her days and ensure that Johnny gets to piano every week. If dad thinks little Johnny should be taking hitting lessons for baseball, he can put that Wednesday and Thursday, because he has every Wednesday, Thursday.

Now, if dad also thinks he should be on the baseball team, mom and dad are gonna have to be on the same page for that, because it’s obviously practices you’re not gonna control and games are gonna be on the weekends when both parents have it. Sometimes you’ll hear attorneys say, or litigants, parents, say 2-2-3 when they really mean a 2-2-5-5. And I think it’s really important to distinguish between these two because there is a schedule called a 2-2-3.

Yes. And I think the 2-2-3 is the dumbest schedule on the planet. And I do not know why anyone would ever put this in their court order. And occasionally we’ll have parents who are adamant that this is what they want. I think it is a terrible idea. It’s very confusing. I don’t know how you’d ever keep track.

But what a 2-2-3 is, is you know, okay, week number one mom has Monday, Tuesday. The dad has Wednesday, Thursday, then mom gets the weekend of, you know, those three days, Friday till Sunday. Then the next week, dad’s gonna have Monday and Tuesday, and mom’s gonna have Wednesday, Thursday.

So every week no parent is getting more than three days. They’re flipping who has what day. And yes, it means that you don’t have to go so long without seeing your child but at the same time, and that is a lot of back and forth. There’s a lot of confusion. I even had one person telling me recently that they were following a 50/50 schedule that was alternating days.

Why would you torture yourself, and your child like that by having so much back and forth. And I get that parents that are often like I can’t, my child can’t be away from me for that long. I can’t be away from a job for that long. I’m like, if you’re splitting up with the other parent, you got to figure out a way to make that work.

So when we’re looking at summer in a 50/50 schedule, can you talk a little bit about how people often do summer, whether it’s week on week off during the school year or 2-2-5-5 or god forbid a 2-2-3, what do you typically see people doing for summers?

Desiree: So typically, we see people do week on week off for summer. That allows for vacations, any extended event camps, anything that kiddos would want to be in. Some people will even do two weeks on two weeks off, or a two week start. And so two week start, someone gets the first two weeks, the other parent gets the next two weeks.

And then after that they alternate week on week off. And then that allows you the ability to say hey, I want to book that cruise. And I know for sure that’s my week. And we can go from Sunday to Sunday. And we don’t have to rush back for a possession exchange. It’s very flexible, generally in a 50/50. Some people will even just say, hey, you get 14 consecutive days, you get to designate by April 15th.

And then that allows you that flexibility to schedule some time whenever needed. And then we also include reset language, after whatever period of possession that you elect, so that every week on week off gets started again, so that no one has the ability to tack on three weeks at a time.

Holly: Yeah, the reset provision is really important, not just for extended summer. But it’s also important to have that for holidays. Because of a couple of reasons. Number one, it makes it much easier for you to figure out which week is yours, when you just have to go back to the most recent okay, I have even years for spring break.

So in 2024 I know that’s mine, this is spring break. So the week after is going to be the other side. If you don’t do a reset provision, then you can wind up with situations where dad has the week before Thanksgiving, dad gets Thanksgiving. And now he also gets the week after Thanksgiving. So he gets three weeks in a row because we didn’t reset following Thanksgiving.

When you have a reset provision, the maximum you’re gonna have in a row is really two weeks at any given holiday or whatever. So I think that for our attorneys that are listening when you’re drafting these 50/50 schedules, you really have to be mindful of including the reset provision and also for enforceability purposes and just figuring out are you going to go back to let’s say your 50/50 schedule started in 2010.

All right, are you gonna go back to the week that it started and count the calendar every single week until you get to 2023? And oh, this week was supposed to be mine. So definitely something to be mindful of. Okay, so moving on to some other schedules that we don’t see too often. And they’re not in the family code, but they are important for people to be aware of. The first one would be when we have children under three.

What types, again, there’s nothing in the family code that says what we should do. I think as attorneys, it’s a really good idea to know your judge. Do they have a particular preference for children under three? But can you tell us about some examples of what schedules for children under three look like?

Desiree: Yeah, so it’s really going to depend on their age and the child’s needs. So I’ve had cases, you know, where kiddos are still breastfeeding, so they couldn’t and also nursing specifically, because since they were nursing, and they were unable to take a bottle, they can only be with dad for three hours at a time, because at that point, it was time to feed. So we would include, you know, several, three periods of possession so that dad’s still got his time. But we also needed to be mindful of this kiddo is nursing and unable to take a bottle.

As they get older, and you know, they’re no longer on the bottle, they’re starting to take solids, then we’ll increase that amount of time, you know, maybe six hours and work up to some overnight period of possessions. Probably not the whole weekend, but maybe like a Saturday to Sunday, something like that. So that kiddo can get used to being away from generally mom, if she’s the one nursing or something of that nature.

Holly: And generally, the younger kids are, I think the research has suggested that visit should be more frequent and shorter, because when you’re 18 months old, a week is a really long time. So, you know, sometimes we’ll see much more frequent visits throughout the week, or a very different schedule than standard possession. I have seen judges order, essentially standard possession without an extended summer, where it’s just you know, everybody gets a week in the summer or something like that.

I think for a real little one, that can still be a long time to be away from a parent no matter which side you’re on. Like the part of the winter break can end up being pretty long sometimes understand a possession order. We also see sometimes, with kids under three, we may have some sort of a stair step schedule.

So if we have a newborn, or a three month old little baby, the schedule that’s appropriate for that child is pretty different than the schedule that’s appropriate for a kid that’s two and a half. So, and oftentimes, as attorneys, we will see some very protective, usually it’s moms of babies, and they are very, very afraid of giving too much time to the other side.

So we reach agreements, usually, for okay, we’re gonna start out with this schedule, and after six months, we’re gonna bump up to this one, and then after six more months, we’re gonna bump up. So by the time you get to age three, you’re ready for a more standard schedule.

I have seen some parents who will agree to a stair step that’s beyond three before you get to standard five or when the child starts kindergarten or something like that. But I think a judge most of the time, by the time that child gets to three, the family code is going to tell them, presumed minimum amount of time is expanded standard.

Desiree: I see a lot of parents build it out till five, just to be sure that you know, kiddo is comfortable, everything’s going good. And they start school it’s a little bit more consistent, unless they’re in some sort of early pre K program. But like I said, a lot of protective parents, you know, feel like kiddos that young shouldn’t have that time or this time should look like this.

And I think people have to understand, you know, it’s best to really consider what kiddo needs all around. You know, both parents as well as of course their care. So it’s more likely going to be like you said, shorter, consistent times. As long as kiddo is being cared for. The court is probably going to order it.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. Providing family law litigation in Collin, Denton, and Dallas counties and appeals across Texas. For more information, visit draperfirm.com or call 469-715-6801.

Holly: So on the other end of the spectrum, we have cases with older teenagers say 15 or 16 to 18. What sort of different schedule options do you see are out there as available for cases with older teenagers?

Desiree: So most of our older kids, you know, they’re on the week on week off. If anything, they also have the Henderson clause, which is essentially, it allows kiddos to sort of pick if they want to go for their periods of possession.

Now, there are some differences of opinion out there as to if that’s enforceable, because it really is not a set schedule, it leaves it up to the kid’s discretion to say, I’m not going or yes, I am going. I have found that a lot of older kids, they’re going to do what they want to do anyways. They don’t care too much about what’s written in that court order.

So generally, we will include a possession schedule, but then also include a provision in there that says that both parties agree that they’re going to take into consideration the desires of the child. Now you still have a set schedule, that’s still your week. But if kiddo says I don’t want to go, then it’s up to mom and dad to say, yeah, I’m not gonna make you go or whatever it may be.

Holly: And for parents that have older teenagers, you got to be really careful. Because if there is a possession order that says, you know, child is supposed to go with dad or mom for this particular period of time, and you are not doing everything in your power to make sure that happens, then you could find yourself in contempt.

And there are judges out there who will throw you in jail, even if this is an older child. So I think you certainly want to be as proactive as possible on encouraging visits with the other parent, making sure the child is home, punishing them if they refuse to go so that you can stay out of jail in that situation.

Desiree: And I’ll tell you, I’ve had a judge, you know, kiddo was 13, or 14, and at that point taller than mom, and you know, bulking up, he was playing football. Physically bigger than mom, and the judge told her like, you need to get that kid in the car. And she was like, how? Like, physically, how am I supposed to do that? But the court said she needed to get it done.

So like, you know, people need to be mindful of that, just don’t get in the way, do everything you can make them available. And if that’s not working, then try to get some protections, come back to court, see if you can modify your order, because you don’t want to risk the potential of being held in contempt.

Holly: So one of the unique possession schedules that we’re gonna briefly touch on is what we would call nesting. Can you explain what nesting is?

Desiree: So nesting is not one of my favorite things that people do. It is essentially where you share generally the marital home, so the kiddos don’t leave the marital home at all. The parents are the ones who leave and come back. So if your time is Monday and Tuesday, you stay in the house Monday, Tuesday come Wednesday, you leave dad comes. So the kiddos’ lives aren’t interrupted, the only people who are interrupted are mom and dad.

This schedule takes an extreme amount of cooperation between the two parties, and generally in my opinion, should not be used for extended periods of time. Because eventually we find that conflict happens and then the schedule is really not working. If you’d now you’re bumping heads over, you didn’t buy groceries or you left the toilet seat up or something of that nature.

Holly: Yeah, every once in a while, there will be a client who thinks that nesting is a good idea post divorce. And it is a horrible idea post divorce unless it is for a very short period of time. So the time an example of when it might be okay post divorce is when you have to sell the house and nobody can afford to get another one until you have the proceeds from the sale of the house.

So maybe while the house is on the market, you’re going to be nesting and then you’re gonna stay with a friend during your off time or whatever. But sometimes parents get very wrapped up in I don’t want to disrupt my children, it’s not their fault, I want to do, I need to do this for the kids.

I’m like, it is not going to be a good situation for the kids when two years down the road, dad has a girlfriend and now wants to nest in the house with the girlfriend or something. And it’s very hard to control things like that from happening very far into the future. So as an attorney, I think we should be advising our clients only nest for short periods of time and only when it is you know the house is going to be sold and the finances require nesting.

Desiree: Absolutely.

Holly: So next we’re going to talk about you know, sometimes we have clients that have very different jobs. And those jobs do not lend themselves to either standard possession order or a 50/50. So we’re gonna go through some of the common types of jobs where we see this. This list is not all inclusive. There are definitely other other types of jobs where you may need to be really creative in coming up with a schedule that works.

But these are commonly seen types of schedules. The first one would be somebody that works for the airline. Could be a pilot, could be a flight attendant. But they have, I do not know how people live this way, with schedules that are so unpredictable. And you know, they can vary from month to month. Talk a little bit about what we do when we have airline employees.

Desiree: So the key to making most of these provisions work is giving notice. So normally, we will allow them a general amount of time as far as their possession schedules and say, hey, you have to give X amount of notice in writing of your work schedule and when you intend to exercise these periods of possession.

Normally, that notice will be attached to your order or your final divorce decree, whatever it is. And then you have to give notice, in that form, each time you intend to exercise your period of possession or get your work schedule, however, that’s assigned to you.

So generally, you know, if they work three or four days in a row, and they’re going to be flying back and forth, they obviously don’t get that period of possession, they just say, hey, I’ll be back on Thursday, I plan to pick them up Friday at six. And they have to give that notice in writing.

Holly: Yeah, and in my experience, we’ve represented a number of pilots over the years. And they’re even how things work from whether they’re a private pilot for somebody, or whether they work for a small little airline for you know, like corporate jets, or they work for American Airlines, there’s a big difference in the way the schedules can work and what kind of notice you get. And we’ve seen people who are private pilots where you might get a phone call that you need to be on the plane in two hours.

As opposed to having a schedule, say a month in advance if you’re working for American Airlines. So you have to look at what is the particular circumstance for this pilot. And it could be, let’s say, somebody is a private you know, working for a small little corporate jet airline, because they’re a newer pilot, and that may be the job they got, but their goal is to get to Southwest or American or United or whatever.

And we can anticipate that their schedule is going to change from being on call all the time, to, you know, whatever the common situation is for big major airlines. So if you can anticipate that sort of a change, you want to include that in the order because it prevents clients from having to come back to modify as soon as somebody gets a new job.

So I think that’s, it really stinks if you are the other parent that does not have this schedule, when you have to deal with a schedule like this. Because you’re, if they’re on call you’re on call. So there’s a lot to consider. And some people and this doesn’t apply just for an airline employee, you could apply for any of these that we’re going to talk about, you might strongly push for just a regular schedule, so that at least you can plan and have a right of first refusal on the days that they’re working so that you have the option to have the kids during that extra time.

But you’re not obligated and you can plan your life. So another one that we see quite a bit would be the firefighter or paramedic schedule. For anyone who isn’t familiar with what their schedules are like, typically, they work 24 hours on 48 hours off, and they get an A, B, or a C shift.

And I think this is very uniform across, at least in the state of Texas, maybe the whole country. I don’t know. But everyone I’ve ever heard of this is the way it works for a firefighter or paramedic. So talk a little bit about what we do for schedules when we have a firefighter or paramedic?

Desiree: So it’s kind of similar in that we focus on their shifts, you know, are you doing 24 on, 48 on? How to ever just works for their schedule. And so basically, based on your shifts that you’re going to take, then we try to of course accommodate your periods of possession.

Holly: So when I’ve seen dealt with a firefighter schedules, they’ll usually say something like if you’re working A shift then, like capital A, not just a shift. If you’re working the A shift, then this is what the A shift looks like. So this is what your schedule is going to be. If you’re working the B shift, you’re going to have this schedule. If you’re working the C shift, you’re gonna have this schedule.

And it’ll it tries to maximize the quality time a parent is going to get, the non primary parents really want to maximize quality time for both parents, and the primary parent can be the firefighter. But you just have to figure out what type of schedule is going to best accommodate quality time for this. A police officer, I think also has variable schedules. Talk a little bit about what we would see for something like that.

Desiree: So it will depend, of course, on their shifts, and their level I believe, of that they are within. Are they patrol, detective, whatever their role is, as a police officer. Again we try to accommodate their work schedule in that you still have a set amount of time. But depending on when your shifts are going to be, of course, we generally see a right of first refusal if you’re working or if you end up getting called into work.

But other than that, we have elections that need to be made, saying, hey, I got my schedule, I’m going to be on patrol for Monday through Friday. So this is the period of possession I would like to have. But also still having a set amount of time that they are guaranteed.

Holly: For a lot of police officers, they typically would get their schedule, like a three month block in advance. I think, with any of these types of jobs, where somebody has a unique schedule, it’s really important to understand as the attorney drafting these orders or helping to come up with settlement solutions, or knowing what to ask the court for, to understand in the particular job this person has, what sort of notice, do they get of their schedule?

How far in advance do they know? Is it always the same? Does it vary? Because then you can tie in your notice requirements for choosing dates. You know, I think another example, contractors can have variable schedules. They can be traveling around the world, they can be gone for chunks of time, and you know, long periods of time at once.

And so understanding the type of job someone has, and the notice requirements that are going to go with that is really important. I think it’s also important to understand if a particular job or particular person is likely to be on call. And what does that mean? There needs to be some sort of a plan, if this person is on call, that could be a pilot, that could be a doctor, that can be a nurse. I’m sure there are lots of jobs where people are on call.

What’s gonna happen if this person gets called in? What’s the plan? Is mom going to, if dad’s on call overnight, is mom on call overnight? Or is there going to be some other plan for who’s coming in to watch the kids when dad gets called into the hospital or whatever the case may be. I think with any of these types of schedules, it is really important to include a backup normal schedule.

Because what if the person that we work some crazy schedule and they’re on call all the time and they can’t take it anymore, they need a normal schedule. So they quit that job and they get another job. You don’t want to have to go to court immediately to get a new schedule. So if you can include whether it’s standard possession or a 50/50, schedule or whatever is appropriate under the circumstances of the case, I think it’s a really good idea.

It’s also a good idea to include that standard over 100 miles or something like that, because all right, dad’s a pilot here and he’s got this wonky schedule. What happens if he gets transferred to an airline with a hub in Washington, DC, and he moves up there? What happens then?

So when doing any sort of possession schedules, especially when you’re deviating from something very cookie cutter, I like to try to problem solve in advance for anything that is foreseeable given the unique circumstances of the case.

Desiree: Yeah. And you’ll see a lot of attorneys who will try to keep out you know, the over 100 miles or whatever it may be just because it’s like not the circumstance right now. But I think it’s always good, like you said, to leave it in, in thoughts of avoiding a modification in the future in case someone does move. If it doesn’t happen, great. You don’t use the language. If it does, then language is right there and you avoid another lawsuit.

Holly: So one more type of schedule I wanted to touch on today would be step up possession schedules. And I’m not talking about the step up possession schedules for little bitty kiddos. I’m talking about, you know, we have a parent who’s been MIA for a long time and has no relationship with a child.

Or we have a parent that maybe has had a drug problem and they’re needing to prove sobriety. You’re there’s a variety of reasons why somebody may, it may be appropriate to have a possession schedule. Can you talk a little bit about what those look like?

Desiree: Yeah, so a lot of times like you said, we’ll have parents who are either you know, alcoholics or addicted to drugs and they will relapse. And so generally, they have to prove themselves in order to get back to whatever schedule they may have previously had or even just to get to the standard. So normally we’ll start with some, maybe a few hours every other Saturday with a supervisor.

Generally a paid third party supervisor or if it’s agreed, a family friend or something of that nature. Give them some time supervised in order to establish they’re not a danger to these kiddos. Once you know they continue to prove their sobriety, they can move up to a little bit longer, give them some more hours, maybe start working towards an overnight, and then ultimately a few overnights.

And then hopefully, we get back to either standard or whatever possession schedule they used to have. Normally, these will have drug testing provisions. Sober link provisions included, something to establish that, yes, I’m doing what I’m supposed to do. And I deserve to keep going to step two, step three, step four, in order to get back to where they used to be.

Holly: I think it’s really important to include requirements that you must meet in order to move to the next step, as opposed to just saying, you’re gonna have two months of step one and two months and step two. So, you know, if you test positive for drugs, during step two, you revert back to step one, and you must have X number of clean drug tests before you can move back to step two.

For the example of somebody who’s been not around, and has no relationship with their child, or they have a history of not using their time, then we’ll say something like, okay, you’re gonna have step one, and you’re gonna get two hours a week with this child. Once you have exercised 12 consecutive weeks under this schedule, then you’re gonna move on to step two.

And, you know, a lot of times parents are really the one who’s had the child in that scenario, really afraid of this person getting to further advanced steps. Getting overnights, getting holidays, getting summer. They have to be able to prove themselves and prove that they’re going to be consistent.

And there are many times where we say, look, you know, in step two, he’s gotta go 12 full weekends in a row using his time, in order to get to step three, where he gets holidays, where he gets summers. And we know from the history that odds of this guy actually completing step two are slim to none.

So what harm is there and agreeing to something that you think he’s never actually going to get to? But that gives him the motivation of, okay, if I’m really going to step up, and I’m really going to be dad, then I’m going to have to follow these things. And you might include, if you’re saying somebody has to do every single visit, obviously, emergencies happen, there are legitimate reasons why someone might not be able to exercise a period of possession.

So you may want to have exceptions, like a death in the family or somebody is sick, or whatever. So you have to exercise 80% of the periods of possession. So that allows for whatever emergencies pop up, that’s not going to kill your steps.

Desiree: Right. And, too, in those situations, to include reunification therapy, and have someone there to guide if they really have been apart. You know, I’ve had cases where kiddos haven’t seen parents in years. And we start stair stepping along with doing reunification therapy, and let that therapist check in and make sure you know, we’re not rushing this kid into this.

I think that’s a really good thing to make sure everyone’s on the same page. Because even if someone’s walking the walk and doing the steps, once they get to the end, you know, we don’t want it to be all for naught. So I think it’s a good thing.

Holly: I think that is a great idea to include. So we’re just about out of time. But one thing I ask everyone on the podcast and since this is your first time to join me, I’m gonna ask you too. If you could give one piece of advice to young family lawyers, what would it be?

Desiree: I would tell them to take every opportunity as a learning opportunity. You know, each case is going to teach you something new about yourself and about the practice of law. You do not learn everything you need to know in law school.

Your practice is going to help shape you, the people around you are going to help shape you. If you can go to court, watch people litigate. Take what you can from them and leave the rest. You know, I think that’s the biggest takeaway that I’ve had over the years.

Holly: So where can our listeners go if they want to learn more about you?

Desiree: They can go to draperlawfirm.com or draper.com

Holly: Or draperfirm.com.

Desiree: Draperfirm.com. And they can go to my bio there at draperfirm.com and learn more about us there.

Holly: All right. Well, thanks so much for hopping on with me today. For our listeners, if you could do me a favor and go leave us a five star review. I would greatly appreciate it. You can also subscribe to enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.Draperfirm.com