Texas’ Standard Possession Order sets out when the noncustodial parent has visitation with (“possession of”) the children. By default, the noncustodial parent has visitation with the children on Thursday evenings during the school term between 6:00 p.m. and 8:00 p.m., and on the first, third and (if there is one) fifth weekends throughout the year from 6:00 p.m. Friday to 6:00 p.m. Sunday.

But a noncustodial parent may request alternative times for visitation to occur on Thursdays and on weekends. According to Texas Family Code section 153.312(a), the noncustodial parent may elect that weekend visitation begin when the child’s school is dismissed on Friday. The noncustodial parent may elect – unless not in the child’s best interest – that Thursday visitation begin when school is dismissed and end on Friday when school commences.

What are the results of the alternative visitation times?

Thursdays become overnight visits, and when a Thursday precedes weekend visitation, as a practical matter visitation begins Thursday when school lets out and ends on Sunday at 6:00 p.m. Thus, a noncustodial parent may have extended weekend visitation.

But this Family Code section, and another one like it – Texas Family Code section 153.317 – require the noncustodial parent to make these elections “before or at the time of” the original court order setting out visitation, or “before or at the time of” any modification order. A recent Fort Worth Court of Appeals case faced the issue whether a noncustodial parent could ask for these elections by themselves, after a modification order recently had been signed. The Court held that this parent had lost his opportunity to make these elections because he did not make them before or at the time the court granted the modification order.

Accordingly, a noncustodial parent who wants to elect these alternative visitation times must make these elections “before or at the time of” the divorce, a paternity order or a modification action, or the elections will be considered waived.