Dr. Kruk’s Analysis of Texas’ Standard Possession Order

Analysis of Current Visitation Schedule, State of Texas Family Code, and Proposed Equal Parenting Bill: Impact on Children and Parents By Edward Kruk, Ph.D., The University of British Columbia March 10, 2017

I. Contents

1. Current Standard Visitation Schedule -Annual Time Split -Annual Time Split During the School Year (Excluding Summer Block) -Are Children Able to Develop Strong Psychological Bonds with Both Parents Within the Constraints of the Current Visitation Schedule, State of Texas Family Code? -Limitations of the Current Standard Visitation Schedule

2. Proposed Equal Parenting Bill -Benefits to Children of Having Strong Psychological Bonds with Both Parents -The Proposed Equal Parenting Bill and Children’s Ability to Develop Strong Psychological Bonds with Both Parents -Benefits of the Proposed Equal Parenting Bill

II. Current Standard Visitation Schedule, State of Texas Family Code, Section 153.312

Annual Time Split. Under the Current Standard Visitation Schedule, State of Texas Family Code, children spend roughly 76% of their time with their “primary parent” and 24% of their time with their “non-primary parent.” “(This fluctuates from year to year, as in even years they spend 75.2% of their time with their primary parent and 24.8% of their time with their non-primary parent; and in odd years they spend 76.7% of their time with their primary parent and 23.3% of their time with their non-primary parent.)

Annual Time Split During the School Year (Excluding Summer Block). Within this schedule, during the months of July and August, children spend equal amounts of time with each of their parents. During the school year, the remaining ten months of their lives, however, they spend an even more disproportionate amount of time with their primary parent. From September to June (inclusive), on average children spend 82% of their time with their primary parent and only 18% of their time with their non-primary parent. This is important to note as for the bulk of their lives, ten out of twelve months, they spend over four-fifths of their lives with one parent, and less than one-fifth time with the other.

III. Current Standard Visitation Schedule with alternative beginning and ending possession times, State of Texas Family Code, Sec. 153.317


Annual Time Split. Under the Current Standard Visitation Schedule with alternative begging and ending times, State of Texas Family Code, Section 153.317, children spend roughly 67% of their time with their “primary parent” and 33% of their time with their “non-primary parent.” “(This fluctuates from year to year as well depending on odd/even years, where birthdays fall…)

Annual Time Split During the School Year (Excluding Summer Block). Within this schedule, during the months of July and August, children spend equal amounts of time with each of their parents. During the school year, the remaining ten months of their lives, however, they spend an even more disproportionate amount of time with their primary parent. From approximately September to June (inclusive), on average children spend 70% of their time with their primary parent and only 30% of their time with their non-primary parent.

Are Children Able to Develop Strong Psychological Bonds with Both Parents Within the Constraints of the Current Visitation Schedule, State of Texas Family Code? Most child development specialists today would consider that children spending only one-fifth of their lives with one parent will not allow them to develop sufficiently strong psychological bonds with that parent, and that this will have a detrimental effect on their growth, development and overall well-being. The strong attachment, meaningful involvement, and routine influence of both parents in children’s lives are vital to children’s optimal growth and development, and such attachment, involvement and influence is not provided within the constraints of the Current Standard Visitation Schedule, State of Texas Family Code.

In cases where there are two capable and loving parents with an established relationship with their children, where there has been no judicial finding that a child is in need of protection from a parent, or of family violence, there is no basis in law or psychology for preferring one parent over another as a “primary parent.” From the perspective of children, their relationship with each parent is a “primary” one deserving of protection within the family law system. In designating one parent as ”primary” and the other as “non-primary,” and awarding primary residence of children to only one parent, the court effectively removes one parent from the daily, routine life of a child. Such arrangements are also associated with the exacerbation of conflict in situations where parents are in disagreement over the post-separation living arrangements of children.

Traditional visitation schedules are, for the majority of children, outdated, unnecessarily rigid, and restrictive, and fail in both the short and long term to address their best interests (Kelly, 2007). In addition, primary parent orders are highly correlated with parental alienation and disengagement (Kruk, 2010).

The two most important factors in children’s adjustment to the consequences of divorce are the maintenance of meaningful relationships with both parents within a co-parenting arrangement, and shielding children from ongoing conflict between parents. The Current Standard Visitation Schedule, State of Texas Family Code, insofar as they remove one parent as a routine daily caregiver from children’s lives, and exacerbate parental conflict within an adversarial forum where parents compete for “primary parent” status, is thus in direct opposition to the best interests of most children.

Limitations of the Current Standard Visitation Schedule. Family law systems which uphold a primary parent criterion are coming under increased scrutiny as child development experts have emphasized the salience of meaningful involvement of both parents in lives of children of divorce, within a co-parenting arrangement. Yet the primary parent criterion is still upheld on the grounds that the “best interests of the child” (BIOC) are best served by means of placing children in high conflict divorces in the primary care of one parent. It is further asserted that assessing each case on its own merits and the individualized justice to determine who will be the primary caregiver, afforded by the BIOC standard, is the cornerstone of modern family law.

The vagueness and indeterminacy of the BIOC standard, which gives unfettered discretion to judges not trained in the complexities of child development and family dynamics, is highly problematic, given the lack of training of judges in child development and family dynamics. Thus the Family Law Education Review commission, which oversees law school curricula in the U.S., concluded that judges are not equipped to make decisions about the best interests of children in regard to post-separation parenting. Left vague and undefined, based on speculation about future conduct, there are no clear guidelines from which to assess and determine children’s best interests, and judges’ views on the BIOC are highly variable, and outcomes unpredictable and inconsistent. The BIOC standard is a projective test, and the absence of a clear definition of or judicial consensus on children’s best interests renders it unworkable (Emery, 2007). Courts cannot determine an individual child’s “best interests” with certainty, and judges are forced to rely on their own interpretations of children’s interests, and idiosyncratic biases and subjective value-based judgments, including gender bias. Judges must choose between specific views and values regarding child-rearing, usually favoring litigants with values and attributes similar to their own (Warshak, 2007). However, when two “good enough” parents are in dispute over post-divorce parenting arrangements, there is simply no basis in law or psychology for choosing one over the other as a primary parent (Kelly and Johnston, 2005).

Asked to make life-changing decisions based on a discretionary and subjective assessment of a multitude of factors, judges struggle to make accurate diagnoses of what will be in the long-term best interests of children. Cases are largely decided by the way evidence is presented in court, and thus the BIOC is subject to judicial error (Firestone and Weinstein, 2004). The BIOC standard also makes the court largely dependent on professional custody evaluators. However, the scientific basis for child custody evaluation is hotly contested (O’Connell, 2007), and given the lack of an empirical foundation for such evaluation, child custody recommendations, it is argued, are ethically inappropriate (Tippins and Wittman, 2005).

The BIOC standard provides a fertile battleground for parents in disagreement over postdivorce parenting and catalyzes parents to battle. The uncertainty surrounding the BIOC standard leads to intensified and sustained conflict, and fuels litigation, and in some cases violence. Research indicates that the resultant hostility in the divorce process is the strongest predictor of poor outcomes for children (Bonach, 2005; Semple, 2010). Pruett and Jackson (1999) found that in 71% of cases, the legal process made custody litigants’ feelings of anger and hostility more extreme, according to self-reports, and 75% of parents indicated that the process intensified their negative perception of the other parent.

In Texas, it is assumed by many judges that in cases where there is a trial over the issue, children’s best interests are best served by awarding post-divorce care and control of children to one parent only. In this context, an adversarial process results, in which “winning” is the primary objective, as parents engage in character assassinations in an attempt to gain the upper hand in the custody contest. Further, decisions in the arena of family law have in most cases reflected the presumption that only one parent, usually the mother, is to care for children, while the other, usually the father, provides financial support. Equal parenting of children following divorce is generally seen to be unworkable by the judiciary in cases where child custody is in dispute, and therefore not in the best interests of children. The result is that when there is a trial, parents typically petition for sole custody, and with the high stakes involved in such a “winner-take-all” forum, family disputes are among the most bitter battles waged in court. Current practice has thus promoted litigation, and as rules of evidence are applied in a highly flexible fashion, and as “almost anything might be relevant to a child’s best interests,” contested custody cases are increasingly complex, costly to litigate, and potentially harmful to all affected parties (Bala, 2000).

On the issue of the BIOC, the views of children and parents, and the legal community and judiciary, stand in stark contrast (Pruett et al, 2000). Whereas judges focus on parental capacities and deficits when defining the BIOC, parents are oriented toward children’s needs in the divorce transition. Contrary to the judiciary, parents most negatively affected by litigated divorce (Kruk, 2010) indicate that children’s primary need is the active and responsible involvement of both parents in their lives.

A final argument concerning the flaws of the BIOC standard relates to the fact that when standard visitation orders are made by the court, the court effectively removes a parent from the routine life of a child. And in the act of such removal, children of divorce are discriminated against on the basis of parental status. Whereas the removal of a parent from the life of a child in a two parent family is subject to the “Strict Scrutiny” test, children of divorce are subject to an indeterminate standard in regard to the protection of their relationships with each of their parents. Under the Strict Scrutiny standard, a parent can only be removed as a custodial parent, if the level of due process meets the “strict scrutiny” standard, which is applied when a biological parent’s fundamental liberty interest in the care, custody, and management of their child is removed, rather than simply on the basis of judicial discretion when unproven allegations are made in family court, or parents are simply in disagreement over their children’s living arrangements. Children of divorce are thus not afforded the same protections with respect to their relationships with each their parents as children in two-parent families.

IV. Proposed Equal Parenting Bill

Benefits to Children of Having Strong Psychological Bonds with Both Parents. Before and after divorce, children need both parents to be physically and emotionally attuned, involved and responsive in their lives, and the removal of a primary parent threatens their physical and emotional security. A multitude of studies have demonstrated that the removal of a parent after separation, and father absence in particular, more than any other single factor, is associated with children’s compromised social and emotional well-being. It has been empirically established that father absence is associated with children’s diminished self-concept, and compromised physical and emotional security, behavioral problems, truancy and poor academic performance, delinquency and youth crime, including violent crime, promiscuity and teen pregnancy, homelessness, exploitation and abuse, physical and mental health problems, future relationships, and mortality. Inasmuch as the “winner take all” primary parent approach removes a primary caregiver from children’s lives, robbing children of the love of one of their parents and uprooting them from their extended family, community, culture and traditions, an alternative approach is urgently needed.

The Proposed Equal Parenting Bill and Children’s Ability to Develop Strong Psychological Bonds with Both Parents. The proposed equal parenting bill is intended to preserve children’s primary relationships with each of their parents, and will thus allow them to continue to develop strong psychological bongs with both of their parents. Numerous studies (Campana et al, 2008; Melli and Brown, 2008; Gunnoe and Braver, 2001; Laumann-Billings and Emery, 2000; Amato and Gilbreth, 1999; Lamb, 1999; Lamb et al, 1997; Pleck, 1997; Buchanan and Maccoby, 1996; Bender, 1994; Warshak, 1992; Bisnaire et al, 1990) have demonstrated the salutary effects of children maintaining strong psychological bonds with both parents after parental separation within an equal shared parenting arrangement on both children’s divorce-specific and general adjustment. Fabricius et al (2011) concluded that children’s highest level of emotional security is at 50% time levels with each of their parents, confirming the findings of Sandler et al (2008) that shared parenting arrangements shield children from the effects of parental conflict. Bauserman’s (2002 and 2012) meta-analyses of the 45 major North American studies comparing outcomes in joint versus sole custody homes found that joint custody is associated with more salutary outcomes for children. Comparing child adjustment in joint physical and legal custody settings with sole custody, as well as intact family settings, and examining children’s general adjustment, family relationships, self-esteem, emotional and behavioral adjustment, divorce-specific adjustment, as well as the degree and nature of ongoing conflict between parents, Bauserman found that children in joint custody arrangements fare significantly better than those in sole custody on all measures. High conflict families fared as well as the self-selected samples, reinforcing the findings of earlier studies that equal parenting works equally well for high conflict families in which parents are vying for custody (Benjamin and Irving, 1989; Brotsky, Steinman, and Zemmelman, 1988).

Equal parenting arrangements are durable over the long-term and provide significantly more and better quality parental care time for children than primary parent arrangements; equal parenting maximizes the available resources of both parents for the betterment of the child.

Benefits of the Proposed Equal Parenting Bill. The two main benefits of the proposed equal parenting bill are that children’s primary relationships with both parents will be recognized and preserved; and children will be shielded from the harmful effects of ongoing high conflict between their parents.

Equal parenting decreases parental conflict and prevents family violence. It is essential in this context to differentiate among types of high conflict. A rebuttable (our bill doesn’t include a rebuttable presumption)presumption of equal parenting would exclude cases of violence and child abuse, as children of divorce should be afforded the same protections as all other children when there is an investigated finding that a child is in need of protection from a parent; and family violence should be recognized in criminal law. There is also no question that exposure to ongoing and unresolved high conflict is harmful to children. What is under debate is the amount of parenting time that is advisable in high conflict situations. Recent studies have found not only that equal parenting is not harmful in high conflict situations, but equal parenting can ameliorate the harmful effects of high conflict: a warm relationship with both parents is a protective factor for children in high conflict families. Thus Pruett et al (2003) concluded that the effects of parental conflict on child outcomes are mediated by paternal involvement, Gunnoe and Braver (2001) and Bauserman (2002) found that the benefits of joint custody on children’s well-being exist independent of parental conflict, and Fabricius and Luecken (2007) concluded that equal parenting is beneficial for children in both low and high conflict situations. Finally, Fabricius (2011) determined that children’s ongoing relationships with each parent can counter the harmful effects of parental conflict, and that limiting parental time when there is parental conflict makes children doubly vulnerable to long-term physical and mental health problems. “Winner-take-all” adversarial processes and sole custody or primary residence orders are strongly associated with exacerbation or creation of parental conflict. Inter-parental conflict decreases over time in equal parenting arrangements, and increases in sole custody arrangements; inter-parental cooperation increases over time in equal custody arrangements, and decreases in sole custody arrangements (Bauserman, 2002; Melli and Brown, 2008). Fully half of first-time family violence occurs after separation, within the context of the adversarial “winner-take-all” sole custody system (Ellis and WightPeasley, 1986; Hotton, 2003; Johnson and Hotton, 2003; Statistics Canada, 2006). This is no surprise, given the high stakes involved; when primary parent-child relationships are threatened, the risk of violence rises dramatically. When neither parent is threatened by the loss of his or her children, conflict diminishes. The culture of animosity created by the sole custody system seems tailor-made to produce the worst possible outcomes when there are two capable parents who wish to continue as primary caregivers, cannot agree on a parenting plan, and are forced to disparage each other within the adversarial system in an effort to simply maintain their role as parents.

There is no evidence that to support the contention that equal parenting increases interparental conflict (Bauserman, 2002; Gunnoe and Braver, 2001); rather, when neither parent is threatened by loss of their children, conflict levels go down. Rather than accepting that high conflict is inevitable, the goal should be to reduce parental conflict after divorce. Most acrimonious parents can successfully learn to minimize conflict when motivated to do so, and an equal parenting presumption provides an incentive for parental cooperation, negotiation, mediation, and the development of parenting plans (Kruk, 2013). A number of specialized interventions to help parents reduce conflict have been developed, including therapeutic family mediation, parent education programs, parenting coordination, and parallel parenting.

In sum, much of the “practice wisdom” regarding high conflict and equal parenting is not empirically supported, including the following assumptions: conflict is inherently bad for children; conflict will increase with equal parenting; equal parenting will not benefit children in high conflict situations; and little or nothing can be done to decrease conflict. Current literature does not support a presumption that the amount of parenting time should be limited in cases of high conflict, and high conflict should not be used to justify restrictions on children’s contact with either of their parents (Lamb and Kelly, 2009; Fabricius and Luecken, 2007).

My article in the American Journal of Family Therapy, “Arguments for an Equal Parental Responsibility Presumption in Contested Child Custody,” outlines sixteen distinct arguments in support of equal parent presumption in contested child custody, which are presented from a child-focused perspective, with clinical and empirical evidence in support of each argument contrasted to the conflicting evidence. The equal parenting responsibility alternative addresses the problems associated with the primary parent approach. The sixteen arguments are as follows:

1. Equal parenting preserves children’s relationships with both parents

2. Equal parenting preserves parents’ relationships with their children

3. Equal parenting decreases parental conflict and prevents family violence 4. Equal parenting reflects children’s preferences and views about their needs and best interests

5. Equal parenting reflects parents’ preferences and views about their children’s needs and best interests

6. Equal parenting reflects child caregiving arrangements before divorce

7. Equal parenting enhances the quality of parent-child relationships

8. Equal parenting decreases parental focus on “mathematizing time” and reduces litigation

9. Equal parenting provides an incentive for inter-parental negotiation, mediation and the development of parenting plans

10. Equal parenting provides a clear and consistent guideline for judicial decision-making

11. Equal parenting reduces the risk and incidence of parental alienation 12. Equal parenting enables enforcement of parenting orders, as parents are more likely to abide by an equal parental responsibility order

13. Equal parenting addresses social justice imperatives regarding protection of children’s rights

14. Equal parenting addresses social justice imperatives regarding parental authority, autonomy, equality, rights and responsibilities

15. The discretionary best interests of the child / sole custody model is not empirically supported

16. A rebuttable legal presumption of equal parenting responsibility is empirically supported

Many of these findings run counter to now-outdated research and prevailing practice wisdom in the field of divorce. However, there is an emergent consensus within the divorce research community that in the great majority of contested cases of child custody, where family violence is not a factor, children’s needs and interests are best served by preserving meaningful relationships with both of their parents. Children need and want both parents in their lives, beyond the constraints of “visitation” relationships and “primary parent” arrangements. Equal parenting is a viable and desirable alternative in this regard, and “in the best interests of the child from the perspective of the child.”