clear and convincing judge says memeAccording to Appellate Judge Puryear, the legislators never intended for the Standard Possession Order in Texas to be the standard default possession order.

Judge Puryear states in a concurring opinion made in 2005 that the joint managing conservator statute § 153.001, mandates “only minimal restriction on either parent’s possession or access,” id. § 153.193. Puryear says that “the family code no longer favors…the superior rights” of one parent over the other, but that the judges still follow the old judge made law prior to the enactment of the newer family code with joint custody in it.

  • Currently the Texas Family Code only provides two possession schedules. Neither one of which provides the child the benefits of equal access to both parents. Standard Possession Order (~75/25)/Extended Standard Possession Order (~66/34).
  • The Texas Family Code presumes that the possession schedule which provides the least contact between the child and the non-custodial parent is in the best interest of the child.

Sec. 153.252.  REBUTTABLE PRESUMPTION.  In a suit, there is a rebuttable presumption that the standard possession order in Subchapter F:

(1)  provides reasonable minimum possession of a child for a parent named as a possessory conservator or joint managing conservator; and (2)  is in the best interest of the child.

  • The Texas Family Code’s minimum possession schedule is being used as the default schedule by judges and has become the most common possession schedule order between fit disagreeing parents. (Visit this blog post for proposed parental rights bills to change this and bring the code back to equal parenting and protect your child.)

Judge Puryear says that judges right now treat the possession plans in the family code like those are the maximum that a fit parent can have when there is disagreement. The judges use it regularly as a default whenever they want to end a child custody conflict in their court. That contradicts what Judge Puryear says the code was meant to do.

“Current family code chapter 153, governing conservatorship, possession, and access, no longer leaves that broad choice to the trial court; it has effectively chosen both parents as the children’s conservators by providing for joint managing conservatorship, Tex. Fam. Code Ann. § 153.005 (West 2002), articulating the policy that parents should share in the rights and duties of child rearing and have frequent, continuing contact with the child, id. § 153.001, and mandating only minimal restriction on either parent’s possession or access, id. § 153.193″


Judge Puryear goes on to say that the legislature intended for the judges to award maximum time with each parent who is more than just a satisfactory parent. That must have been lost somewhere, because as we showed above the code reads that the minimum is “reasonable” and “is in the child’s best interest.”

(1)  provides reasonable minimum possession of a child for a parent named as a possessory conservator or joint managing conservator; and (2)  is in the best interest of the is hard to believe since the code even says that the minimum is in the child’s best interest.

In addition, the current low standard of proof (preponderance of the evidence) in the trial courts and the high bar (abuse of discretion) to overcome in the appellate courts that Judge Puryear mentioned is making it impossible for parents to fight these orders even though the statutes clearly are allowing unconstitutional orders depriving fit parents of their full fundamental parental rights to be made and remain in place.

He states:

“Thus, even against the background of these monumental rights and explicit legislative directives to limit a parent’s time with a child only as necessary, see Tex. Fam. Code Ann. § 153.193 (West 2002), a trial court, if it were ever so slightly more persuaded in one direction than another, may make a decision profoundly affecting the rights and abilities of parents to raise their children, and unless we can say that no reasonable mind could have reached the court’s conclusion, we leave it undisturbed.”

The father was torn from his child. The time that has been stolen he will never get back. The father in this appellate case, Duck, was asking for a custody modification to 50/50 equal custody. He raised constitutional rights arguments. The appellate court however never heard his constitutional arguments because he did not meet their legal standard, their bar for change in circumstances at the trial court level, and the appellate court upheld it. Also the standard at the appellate level was similarly high. Therefore the Court affirmed the trial court’s decision and the violation of his and his child’s constitutional rights went un-reviewed and ignored.

“Duck challenges the court’s failure to decrease child support and to grant further modification of the possession schedule, and the court’s finding that it was not in the children’s best interest to implement a 50-50 division of periods of possession. Because the evidence supports the district court’s conclusion and because we cannot say that the court abused its discretion or otherwise committed error, we affirm the court’s order.”

Judge Puryear, (his opinion is not controlling)*, states that Duck and other parents have not been able to receive justice on these rights issues because the standard that the appellate courts use block them from being able to be heard.

Puryear says that “Texas courts have developed a jurisprudence under which trial court decisions severely curtailing that relationship stand absent an abuse of discretion.” In other words, the courts have employed an abuse of discretion standard of review. And this makes it very, very hard to be heard..


Judges defaulting to the minimum standard of possession in the family code, Puryear states, “falls far short of showing proper respect to the legislature’s deliberate policy decisions commanding Texas courts to support and cultivate relationships between children and their parents so long as those parents are fit and to implement maximum parent-child contact to actively preserve family relationships often made all too fragile by parents’ inabilities to set aside personal animosity long enough to recognize their children’s need for their other parent.”

“Despite the United States Supreme Court’s determination to subject infringement upon such fundamental rights to strict scrutiny and of our own legislature’s mandate to preserve and foster parent-child relationships, Texas courts have developed a jurisprudence under which trial court decisions severely curtailing that relationship stand absent an abuse of discretion.”

You can access the full concurring opinion regarding the Duck case here. We do not use the main opinion of this case as it never reached the merits of Duck’s constitutional arguments.

However, just because it is not a controlling opinion in this case, does not mean that you cannot use it.

“I write separately to express my belief that the standards currently used in making and reviewing orders that have the effect of limiting a parent’s access to his or her children do not reflect the legislative mandate regarding parental access, nor do they adequately respect the scope of the liberty interest enjoyed by a parent in rearing his or her own children.

Because of the gravity of the constitutional rights and interests at stake in such proceedings, and because the current standard is based upon outdated notions of parenting that predate the family code and run counter to the legislature’s stated policy concerning children’s best interests, trial courts should justify deviation from maximum feasible time with both parents by clear and convincing evidence and make factual findings, and appellate courts should carefully review those findings.”

~[In re J.R.D., 3rd COA Texas, Judge Puryear]



You can take this template for a Possession Schedule Bill v1_0 FFC to your legpossession schedule proposed bill in texas 2017islator and ask them to update the Family Code so that your judge doesn’t allow his/her personal bias or use it to disadvantage you or create inequalities between you and the other parent.

You Can File Declaratory Judgement…*

Because no government body is to violate your constitutional rights without proper due process and procedure, you can file declaratory judgment motions and argue that the legal logic in your arguments are backed by the arguments of this judge in Texas, and that the only reason you do not have a controlling opinion yet is for the very reason that this judge states, the abuse of discretion standard is improperly blocking review of the deprivation of these “monumental” rights being infringed without proper 14th amendment due process protections.

I Need Help Getting Started…

We can help you out with this. We have completely layed out that argument for you in our declaratory judgment motion samples.

What are you Doing with These Motions?

You would be asking your court what rights are at issue in your case, what procedure the court will use regarding these rights, and what rights will you have to litigate. This will help clarify what rights your court believes you have and what protections your court will provide for these rights. This helps you to know what you will be required to litigate, what rights are at issue, and who has the burden of proof and what standard of proof the court intends to use. (These just name a few of the reasons and things that these declaratory judgment motions do.)

Puryear quote



*Why isn’t Judge Puryear’s concurring opinion controlling? It is just a concurring opinion. The judge that writes the main opinion is the one that has the control over the precedent that is set in law from the opinion.

~Special thanks to Benjamin Beveridge, Texas TFRM, ALFRA, and The National Family Law Policy Center.