An explanation of Texas Family Code 153.252
- There may by some confusion as to what Texas Family Code 153.252 is addressing.
- 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.
Before we break down the code into what it means, we must first look to the "subchapter" that it is under.
- SUBCHAPTER E. GUIDELINES FOR THE POSSESSION OF A CHILD BY A PARENT NAMED AS POSSESSORY CONSERVATOR
It is true that "titles", "subtitles", "chapters", "subchapters", and "sections" do not add or subtract [expand or limit] to the meaning of the statutes. Texas Gov't Code says as much.
- Sec. 311.024. HEADINGS. The heading of a title, subtitle, chapter, subchapter, or section does not limit or expand the meaning of a statute.
The TSC however, has made several rulings about "headings" and even though they do not add or subtract [expand or limit] the meaning of the statute, they do offer key directions and intent of the statutes.
- "...the heading gives some indication of the Legislature's intent to group what it considered to be procedural matters together".
UNIVERSITY OF TEXAS SW MEDICAL CENTER v. Loutzenhiser, 140 SW 3d 351 - Tex: Supreme Court 2004 - "And although its title, "Certificate of Merit," does not limit or expand the meaning of the statutory provisions, see TEX. GOV'T CODE § 311.024, the title nevertheless gives some indication of the Legislature's intent in enacting the section."
PEDERNAL ENERGY v. BRUINGTON ENGINEERING, 536 SW 3d 487 - Tex: Supreme Court 2017 - "Further, though a statutory heading does not limit or expand a statute's meaning, the heading can inform the inquiry into the Legislature's intent".
TIC Energy and Chemical, Inc. v. Martin, 498 SW 3d 68 - Tex: Supreme Court 2016
The TSC has also given guideance that we must consider the entire
- "Additionally, we must always consider the statute as a whole rather than its isolated provisions. We should not give one provision a meaning out of harmony or inconsistent with other provisions, although it might be susceptible to such a construction standing alone."
Combs v. Roark Amusement & Vending, LP, 422 SW 3d 632 - Tex: Supreme Court 2013 (see also Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001)) - "And we will not give an undefined statutory term a meaning that is out of harmony or inconsistent with other provisions in the statute... (noting that we presume the Legislature "chooses a statute's language with care, including each word chosen for a purpose, while purposefully omitting words not chosen")"
Harris County v. WORKFORCE COMMISSION, 519 SW 3d 113 - Tex: Supreme Court 2017
Lets peice this puzzle together.
Lets start off with the subchapter:
- SUBCHAPTER E. GUIDELINES FOR THE POSSESSION OF A CHILD BY A PARENT NAMED AS POSSESSORY CONSERVATOR
Well it gives us some direction as to the "Legistlatures intent" and "group what is considered to be procedural matters together"
So, we are looking at "procedural matters" probably centered around "possessory conservator" (if not named directly in the statute).
Taking one small step forward, we look at the "subchapter" as a whole (I will limit this to what is applicable here).
- Sec. 153.251. POLICY AND GENERAL APPLICATION OF GUIDELINES. (a) The guidelines established in the standard possession order are intended to guide the courts in ordering the terms and conditions for possession of a child by a parent named as a possessory conservator or as the minimum possession for a joint managing conservator.
(d) The standard possession order is designed to apply to a child three years of age or older. - 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 - Sec. 153.253. STANDARD POSSESSION ORDER INAPPROPRIATE OR UNWORKABLE. The court shall render an order that grants periods of possession of the child as similar as possible to those provided by the standard possession order if the work schedule or other special circumstances of the managing conservator, the possessory conservator, or the child, or the year-round school schedule of the child, make the standard order unworkable or inappropriate
- Sec. 153.254. CHILD LESS THAN THREE YEARS OF AGE. (a) The court shall render an order appropriate under the circumstances for possession of a child less than three years of age. In rendering the order, the court shall consider evidence of all relevant factors, including:
- Sec. 153.255. AGREEMENT. The court may render an order for periods of possession of a child that vary from the standard possession order based on the agreement of the parties.
Taking 153.251 we find that the guildelines in the SPO "are intended ... as THE minimum possession for a joint managing conservator"
Stress on the word "THE" meaning that there is only one and that is the "minimum possesssion".
153.252 shows the "rebuttable presumption" that SPO "provides reasonable minimum possession" to a possessory conservator (PC) or JMC and is in the best interst of the child.
So a JMC can rebut the presumption to have MORE possession time the SPO offers.
This clearly works with 153.251 because we find that the SPO is inteneded as THE MINIMUM POSSESSION, it does NOT limit the JMC from obtaining more possession.
153.251 however does give indication to the court that a PC's possession can be limited with "terms and conditions".
