Deviation from standard possession requires special findings with special deadline

Whenever a trial court, after a nonjury trial, enters a possession schedule which deviates from the standard schedule, a party may request the trial court to enter special findings about the reasons for deviation from the standard order. However, those findngs must be requested within the time depcified by Texas Family Code sec 153.258, which is 10 days from the date of the hearing. If such findings are not requested within that time frame, the party waives the right to seek such findings on the special possession schedule. The effect is that the party will have a very difficult time challenging the discretion of the corut in entering the non-standard possession schedule if no findings exist. On appeal, the trial court’s decision will be upheld on any ground available from the evidence, not just the ones the trial court would have put in the findings.

The Tyler Court of Appeals recently decided a case on this issue. There, the trial court appointed mother and father as JMC and stated that father was to have possession of the child 14 days out of every 28. Mother filed for regular findings but did not timely request the non-standard possession findings under sec 153.258. Mother could not complain about the trial court’s failure to make those findings and waived her complaint.

Practice note: It is very important that family lawyers be aware of this rule! If you try a case to judgment and one party is awarded a possession schedule that deviates from the standard schedule, you must file the request for findings 10 days after the hearing. The rule is silent as to how to handle a situation where the trial court takes the case under advisement and issues a ruling more than 10 days following the hearing, but I would assume that the 10-days would start from receipt of the ruling, not the hearing. Please, trial lawyers, do not think that it is someone else’s problem. You could very easily commit malpractice if the deadline to request these findings expires on your watch!

Pickens v. Pickens, 2014 WL _____________, 12-13-00235-CV (Tex. App.—Tyler 2014, no pet. h.) (02-28-14)

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