The Standard Possession Order provides for Thursday pick-up at 6:00 p.m. and return at 8:00 p.m.; and for weekend pick-up on Friday at 6:00 p.m. and return at 6:00 p.m. on Sunday. Tex. Fam. Code § 153.312(a). But a conservator may elect alternative beginning and ending possession times. On Thursdays, pick-up can be after school and return can be to school Friday morning. Weekend pick-up can take place when school lets out Friday, with return to school Monday morning. Tex. Fam. Code § 153.317.
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Time for Electing Expanded Standard Possession
If a conservator wants to elect one or more of the alternative beginning or ending possession times, the conservator must make that election “before or at the time of the rendition of a possession order.” The election may be made in one of two ways:
(1) in a written document filed with the court; or
(2) through an oral statement made in open court on the record.
Standard for Election
A trial court is required to respect a conservator’s election of an alternative possession time “unless the court finds that the election is not in the best interest of the child.” Tex. Fam. Code § 153.317(a). In that case, the trial court must deny the request for an election.
Finding the Best Interest of the Child
The Corpus Christi-Edinburg Court of Appeals has explained how a court can make a finding that an election is not in a child’s best interest. In In re B.L.B., No. 13-13-00594-CV (Tex. App. – Corpus Christi-Edinburg May 22, 2014) (mem. op.), the trial court denied a conservator’s request for election. The trial court did not specifically find that the election was not in the children’s best interest, although the court did find that the orders it made (on several issues) were in the children’s best interest.
In the appeal, the conservator relied on Mason-Murphy v. Grabowski, 317 S.W.3d 923 (Tex. App. – Austin 2010, no pet.), in which the Austin Court of Appeals held that to deny a request for expanded standard possession, a trial court must make an “affirmative finding” that expanded standard possession is not in a child’s best interest. In contrast, the Fort Worth Court of Appeals, in Ruiz v. Ruiz, No. 02-12-00136-CV (Tex. App. – Fort Worth Feb. 14, 2013, no pet.) (mem. op.), held that an “implicit” finding that expanded standard possession is not in a child’s best interest is sufficient to deny expanded standard possession. In In re B.L.B., the Corpus Christi-Edinburg court affirmed the denial of expanded standard possession because of the global finding by the trial court that its orders were in the children’s best interest.