Family Law Fundamentals Part 3: Summer Possession in Texas
- Taylor Mohr
- Jun 28
- 9 min read
Summer break is a much-anticipated time filled with sunshine, vacations, and a break from the school routine. But for parents dealing with co-parenting, it can also bring challenges around custody arrangements. It's common for parents to face issues when their custody orders don't align with travel plans, summer camps, or family visits. Even well-thought-out custody agreements can struggle to keep up with the changing summer schedules.
Here are some things parents should keep in mind when it comes to summer plans and child custody.
Click here to download our free Summer Travel Co-Parenting Checklist to plan ahead and protect your summer vacation.
🗓 When Can You Modify a Custody Order?
Parents can agree to change a custody order whenever they need to, reflecting their changing situations and what’s best for their kids. Ideally, they’ll work out these changes together, which helps build a cooperative co-parenting relationship focused on their children's well-being. When parents agree on modifications to custody, it’s important to get this agreement in writing. Both parties should sign it to make sure there’s a clear record of what they’ve agreed on. For extra legal strength and enforceability, it’s a good idea to turn this agreement into a court order, which requires a judge's signature. This process not only formalizes the changes but also helps avoid future disputes about custody by providing a solid legal framework that both parents need to follow.
If the parents can’t agree on modifying the custody order, the person wanting the change has to take formal action by filing a Petition to Modify the Parent-Child Relationship. This petition needs to explain the changes they want and why they think those changes are necessary. To succeed, the person filing must meet certain legal standards for a modification. According to the Texas Family Code §156.101, a court can modify an existing order if there’s proof of a material and substantial change in circumstances. This could mean big changes in either parent's living situation, shifts in the child’s needs as they grow, or changes in a parent's job that impact their ability to care for the child. Plus, the court must find that the requested change is in the best interest of the child, which means focusing on the child’s emotional, educational, and physical needs.
While the criteria above are for bigger changes in custody, it’s good to know that parents can also make smaller, short-term adjustments to their custody orders. For example, during the summer, parents might need to tweak the possession schedule for vacations, summer camps, or other activities that don’t fit the regular school-year routine. These temporary adjustments can often be made informally, but it’s still a smart move to document these agreements to prevent any misunderstandings or conflicts later on. By keeping communication open and being flexible, parents can handle these changes smoothly, ensuring their kids continue to thrive in a supportive environment.
🧠 Co-parenting applications like Our Family Wizard are incredibly helpful at documenting changes to the possession schedule and the communication surrounding those changes.
📜 What Does the Texas Standard Possession Order (SPO) Say About Summer?
In Texas, the Court is required to presume that the Standard Possession Order (SPO), which you can find in the Texas Family Code §153.3101–153.3171, is in the child's best interest. This means that some version of the SPO shows up in a majority of child custody orders in Texas. Here’s a quick breakdown of what the SPO includes for summer possession:
Extended Summer Possession: Non-primary parents who live within 100 miles of the primary parent can have their kids for up to 30 days in the summer. If the parents live over 100 miles apart, that can stretch to 42 days. Just remember, the non-primary parent needs to let the other parent know by April 1 if they plan to take that extended time. If they miss the deadline, the default summer schedule will be in effect from July 1 to July 31.
The primary parent gets to pick one weekend during the non-primary parent's extended summer possession. If the non-primary parent lives more than 100 miles away, the primary parent can choose two weekends. This choice has to be made by April 15, or this weekend possession during the non-primary parent's extended summer possession is forfeited.
Also, the primary parent can "knock out" one of the non-primary parent's regular weekend visits. The primary parent needs to make this choice by April 15; however, if they miss that deadline, they can still exercise the knock-out weekend option if they provide the non-primary parent with 14 days' notice. Just be careful not to mess with important dates like Father's Day or the non-primary parent's summer time.
⚠️ Many parents are unaware of these important deadlines or the default rules until summer is already underway. If deadlines are missed or plans change, parents may need to work out arrangements with each other or even return to court to resolve visitation issues.
⚠️ Plus, many families have modified summer possession schedules, which can happen through agreement between parents or a court order. For example, week-on/week-off schedules during summer are pretty common to balance parenting time. It’s extremely important for parents to review their custody orders and understand their contents carefully. Seeking advice from a lawyer can help clarify matters and ensure parents understand their rights and responsibilities regarding custody and visitation.
✈️ What If the Other Parent Won’t Agree?
If your co-parent refuses to accommodate travel:
Try informal discussion first. Most possession schedules begin with a sentence stating something along the lines of, "Possession of the child is as agreed by the parties." This is followed by a provision stating, "If the parties are unable to reach an agreement, they shall have the right to possession as follows." In other words, parents are encouraged to modify the schedule as needed informally.
Consider enlisting the help of a parenting facilitator to help you and the other parent reach an agreement if informal discussions aren't successful. Parenting facilitators are neutral third-parties (normally licensed professional counselors) trained in helping co-parents works through parenting conflicts.
If neither of those work, use mediation to work through disagreements without going to court. Mediation is a collaborative process that involves a neutral third party, known as a mediator, who facilitates discussions between the parties involved. The goal of mediation is to help both sides reach a mutually acceptable resolution to their disputes. This process is often less formal than court proceedings and can provide a more comfortable environment for both parties to express their concerns and desires. Additionally, mediation can save time and reduce legal costs compared to traditional litigation, making it an appealing option for many individuals seeking to resolve their differences amicably.
If still necessary, file a Petition to Modify the existing order or a Motion for Enforcement if they’re violating the current order. A Petition to Modify is a formal request made to the court to change an existing court order due to a significant change in circumstances that affects the parties involved. This could include changes in income, relocation, changes in the needs of children, or other relevant factors that warrant a reassessment of the original order. On the other hand, a Motion for Enforcement is utilized when one party fails to comply with the terms of the existing order. If your order already allows you to travel with the child but the other parent is violating the order to sabotage your travel, and enforcement action may be the best move. Filing this motion prompts the court to take action to enforce compliance, which may include penalties or other legal ramifications for the non-compliant party.
📘 Travel and Passport Provisions to Consider
Out-of-state and international travel can trigger additional legal complications that may not have been considered when the initial custody order was established. If you are planning to take your child on a trip, it is essential that your custody order comprehensively addresses several critical issues to avoid potential disputes and misunderstandings:
Passport possession and renewal: It is crucial to clarify who holds the child’s passport. This includes determining which parent has physical possession of the passport at any given time. Additionally, the order should specify who is responsible for maintaining or renewing the passport, ensuring that it remains valid for travel. This can prevent complications if the passport expires, as one parent may be more proactive in handling these matters than the other.
Parental consent: Most international travel requires written consent from both parents, particularly under the Two-Parent Consent Law enforced by the U.S. Department of State. This law is designed to protect children from potential abduction by ensuring that both parents are aware of and agree to the travel plans. The custody order should outline how this consent is to be obtained and documented, whether through signed letters, forms, or other means, to facilitate smooth travel without legal complications.
Notice of travel: To maintain transparency and communication between parents, custody orders can (and should) require advance notice of travel dates, destinations, and contact information. This provision allows both parents to stay informed about the child’s whereabouts and ensures that they can reach each other in case of emergencies. It also helps to foster a cooperative co-parenting relationship by encouraging open dialogue about travel plans.
Emergency provisions: It is important to establish what happens if one parent refuses to release the passport or if one parent fears abduction. The custody order should include procedures for resolving disputes related to travel, such as mediation or court intervention. Additionally, it may be wise to outline steps to take in case of an emergency, including how to handle situations where one parent might attempt to prevent the other from traveling with the child.
If your current custody order is silent on these critical points, it is advisable to consider amending it, especially if you anticipate regular travel or have international family ties that may require cross-border travel. Addressing these issues proactively can save you from potential legal challenges in the future.
⚠️ Be aware, though, that some courts have held that adding passports and international travel provisions during a modification can be extremely challenging because the parents should have anticipated the need for such provisions before the prior order was established. This line of reasoning can make it difficult to meet the "material and substantial change in circumstances" requirement necessary to modify an existing custody order. If your order does not include these provisions and the other parent is blocking you from traveling with the child, it is crucial to consult a skilled family law attorney.
✅ Three Options for Summer Schedule Flexibility:
Informal Written Agreement: An informal written agreement can take the form of a simple document, such as an email or text message, that outlines the terms and conditions agreed upon by both parents. While such agreements may be practical in situations where both parties have a high degree of trust and open communication, it is crucial to note that they are not enforceable in court. This means that if one party fails to adhere to the terms outlined in the agreement, the other party has no legal recourse to compel the other party's compliance.
Rule 11 Agreement: A Rule 11 Agreement is a more formalized, written, and signed agreement that is filed with the court, providing a structured approach to resolving parenting issues or other matters arising from a divorce or separation. This type of agreement is enforceable and carries the same legal weight as a court order, except that a party cannot be held in contempt for violating its terms unless it has been converted into a formal court order. Additionally, there exists the potential risk that one party may attempt to revoke their consent to the agreement, which could lead to disputes or complications in the future.
Temporary Orders or Formal Modification: Temporary orders or formal modifications are court-issued directives that alter the terms of a prior order and are signed by a judge. These orders are particularly useful in situations where parenting issues become recurring challenges or when significant changes in circumstances necessitate a reevaluation of existing arrangements. Unlike informal agreements, these orders are enforceable by contempt of court, meaning that if one party fails to comply with the terms, they can face legal consequences. Moreover, orders are durable because the other party cannot unilaterally revoke their consent to a court order. This legal backing provides a level of security and stability for both parents and children, making it a preferred option in many cases where ongoing disputes or changes are anticipated.
🧠 Pro Tip:
In summary, don’t wait until summer is already underway to address conflicts related to custody arrangements. Taking the time to review your custody order in the spring is essential, particularly when travel or passport issues are likely to arise. By being proactive, parents can ensure a smoother summer experience for themselves and their children, minimizing the potential for disputes and fostering a cooperative co-parenting relationship.
If you're going through the initial divorce or child custody process, it's also vital to include all the necessary language to minimize the likelihood of issues over summer possession and travel. Be sure to consult with a skilled family law attorney to get it right the first time!
At Mohr Law Group, we help parents create smart, flexible summer plans—and resolve disputes through negotiation, mediation, or court when necessary.
Click here to download our free Summer Travel Co-Parenting Checklist to plan ahead and protect your summer vacation.
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