What if the Child’s Birthday Falls on an SPO Holiday?

Published October 30, 2018 | By

On one of my other posts I outline the basic terms of the Texas Standard Possession Order.  One of my readers recently commented and asked a very interesting question that I have never been asked before.  Here is the question:  “What happens if a child’s birthday falls on a holiday schedule? Does the holiday schedule trump the birthday order (SPO of 6pm-8pm)?”

The relevant statute is Texas Family Code Section 153.314. That is the part of the Standard Possession Order that says certain “holiday” periods (defined by statute as Christmas, Thanksgiving, Father’s Day, Mother’s Day, and the child’s birthday) trump any conflicting weekend or Thursday visitation. This is true regardless of whether the parents live more or less than 100 miles apart.

What that statute does not make entirely clear is what happens if one of those periods conflicts with the other. Since a child’s birthday is the only one of the holiday periods that doesn’t have a universally defined calendar date it would be helpful if the statute specifically stated what is to happen if the birthday falls on one of the other holiday periods.

While the statute doesn’t specifically answer the question, my expectation is that a judge would give the non-possessory parent the birthday visitation. I based this on the fact that the statute only gives the non-possessory parent a two hour window (from 6:00 PM to 8:00 PM) and requires that parent to pickup and dropoff the child at the other parent’s residence. Just to be clear, this is my best guess as to what might happen and a judge could certainly interpret the statute otherwise and/or make a contrary ruling depending on the facts of the case.  Also I should point out that my analysis is based on the language of the Texas Standard Possession Order and if your court order deviates from that language at all it is the language of your order that is controlling, not the statute.

As always, you should consult with a qualified family law attorney about your specific facts to get competent legal advice about your specific situation.  Feel free to contact my office if you are getting divorced in Travis County and need an experienced family law attorney.

Posted in Children & Divorce, Visitation

3 responses to “What if the Child’s Birthday Falls on an SPO Holiday?”

  1. This would be nice to have an a clearly defined answer because it’s unclear as to which Holiday or Birthday trumps the other.

  2. My fiance gets his child based on TX SPO. This year, his child’s birthday falls on our Friday, the third weekend of the month. Since we do not get him until 6:00 PM that day based on the weekend schedule, does that make us the possessory or non-possessory parent for that day? Would mother get him from 6-8, or would he just stay with us?

    • My child’s birthday lands on his fathers weekend, and is also his fathers weekend. Does that mean I don’t get to see my own child on his birthday at all? Keeping in mind his father will not do anything outside what is spelled out in the papers.

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