There are a myriad of problems of problems
As I read through case study after case study, I find that there are many problems running ramped in the system.
Here are a few examples:
  1. The Appellate courts seem to just get their interpretations wrong.
  2. The Appellate courts application of laws/statutes do not always match up with what the Supreme Court of Texas (SCoT) puts out.
  3. The Appellate courts rarely ever agree with one another and there are 14 of them.
  4. The trail courts often seem to rely on "precedent" [prior ruling from another court] when creating orders].
The Appellate courts seem to just get their interpretations wrong
When reading the case studies, I saw an underlying theme which is the courts do not seem to understand the statutes and so they apply them in a manner this is incorrect.
  • Section 153.251 makes clear that "[t]he 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." Id. § 153.251 (West 2014) (emphasis added).
    Davenport v. Davenport, Tex: Court of Appeals, 1st Dist. 2016
  • "While the guidelines in the standard possession order are intended to guide courts as to the minimum possession for a joint managing conservator..."
    Id. §§ 153.251(a)
    Schindler v. Schindler, Tex: Court of Appeals, 13th Dist. 2018

Looking above, you see that the 1st Appellate court put stress on the term "GUIDE". The interpretation from the court is that the standard possession order (SPO) "GUIDES" the court in the minimum possession for a joint managing conservator.
The 13th Appellate court regurgitates what is found in a 8th Appellate court ruling.
If you understand proper English, you can plainly see that these are incorrect interpretations.
  • **As I to into this, something to think about, a parent will lose precious time with his or her child(ren) if a court makes the wrong interpretation. That is time that the parent and child will never get back.**

Lets break down 153.251:
  • 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.

Here is how the code should be interpreted (keeping with proper English).
  • The guidelines established in the standard possession order are intended:
  • 1. to guide the courts in ordering the terms and conditions for possession of a child by a parent named as a possessory conservator
OR
  • 2. as the minimum possession for a joint managing conservator

How does this differ from the 1st Appellate court's reading?
The appellate court put stress on the term "guide" and seem to read the relevant parts as such:
  • The guidelines established in the standard possession order are intended to guide ... as the minimum possession for a joint managing conservator
This reading allows the court to change the "minimum possession" because it applies the term "guide" to it.
  • "Guide" means to direct or advise... it is open ended and indefinite.
    Cambridge dictionary defines "guide" as: "to give someone advice or help on how to do or understand something"
    Merriam-webster defines "guide" as: "to direct, supervise, or influence usually to a particular end"
  • What the Appellate court is missing here is the word "the", as in:
    "... as "THE" minimum possession for a joint managing conservator.
  • The word "the" makes "minimum possession" definitive. THERE CAN BE ONLY ONE "minimum possession" and thus there is no need or use of a "guide".

The term "guide" only comes into play when in this sentence because of the phrase "... ordering the terms and conditions... ".
  • The phrase "... terms and conditions..." are NOT definitive. There any many conditions or terms that a judge can place on a possessory conservator.
  • Therefore, the term "guide" can only be used on the phrase "... terms and conditions ..." where the court has discretion in making "orders".

"GUIDE" is an ambiguous term: It can mean, Path A, Path B, Path C, or Path D.
"THE MINIMUM POSSESSION" is an unambiguous term: It strictly means the one and only "minimum possession".

oxford learners dictionary defines "guide" as: "something that helps you decide"
"something that gives you enough information to be able to make a decision about something or form an opinion"
  • As a rough guide, allow half a cup of rice per person.
  • I let my feelings be my guide.
Oxford Collocations Dictionary
adjective
  • approximate * general * rough …
verb + guide
  • give (somebody) * provide (somebody with) * use something as …
phrases
  • be just a guide * be only a guide
preposition
  • guide as to * guide to

To apply "guide" to "the minimum possession" is akin to applying the term "they" (ambiguous) to "Mr. Jones" (unambiguous) as in:
  • Mr. Jones went to sleep and they woke up feeling refreshed.

Understanding this, we can plainly see how the Appellate court got its interpretation of this statute incorrect.
They have applied an "AMBIGUOUS" term "guide" to an "UNAMBIGUOUS" term "the minimum possession"
They gave discretion to the court where the court had no discretion and in turn wrongly deprived a parent of his or her child and their [parent's] Fundamental Liberty Interest.
However, this is not the only place that the courts just get it wrong.
  • "...there is a rebuttable presumption that the standard possession order provides the reasonable minimum possession of a child for a parent named as a joint managing conservator and that the order is in the child's best interest. ..., 153.252(1), (2).
    If there is sufficient evidence to rebut this presumption, however, the trial court may then deviate from the standard possession order. Id. at § 153.256"
    In Interest of NPM, 509 SW 3d 560 - Tex: Court of Appeals, 8th Dist. 2016
Let us examine this a bit further and see where things have gone wrong.
First point of note, is the "subchapter"
I can hear you now saying that Texas Gov't Code Sec. 311.024. state:
  • "HEADINGS. The heading of a title, subtitle, chapter, subchapter, or section does not limit or expand the meaning of a statute."
Indeed that is true, they carry no weight to expand the meaning of the statute, but they do give us some insight as to what the Legislature intended for the statutes.
  • " Although the Code Construction Act cautions that "[t]he heading of a ... subchapter ... does not limit or expand the meaning of a statute",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
Understanding the above findings from the SCoT, we can utilize the "subchapter" to give further insight into the direction of the statutes.
  • SUBCHAPTER E. GUIDELINES FOR THE POSSESSION OF A CHILD BY A PARENT NAMED AS POSSESSORY CONSERVATOR
Lets break this down for a second.
It is the "guidelines" for "possession" to a parent name "possessory conservator".
Utilizing the SCoT train of thought, the statutes under this "subchapter" are "indication of the Legislature's intent to group what it considered to be procedural matters together"

What the hell does that mean?
Well, procedure [procedural] are a manner for the court [in this case] to do something.
So, the indication is that the Legislature considered the statutes that fall under "Subchapter E" to be of a procedure for possession to a parent named as Possessory Conservator.

OK, that is about as clear as MUD, however, it start taking shape as we start getting further into the statutes.
Lets go after 153.152 and how that is supposed to be interpreted.
  • 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.
It is clear that 153.242 sets up a "rebuttable presumption".
We start off with the presumption that the SPO
  1. provides a reasonable minimum possession to both possessory concservator or joint managing conservator (JMC)
  2. is in the best interest of the child.
This is where they [the courts] get it wrong.
Yes, it does indeed start with the presumption of a "REASONABLE MINIMUM POSSESSION" for a JMC.
Lets take into account exactly what the language is saying.
  • A reasonable minimum possession for JMC
While 153.251 states in relevant parts:
  • ... SPO... as THE minimum possession for JMC
For these two statutes to flow harmoniously together, we must assume that the statutes are indicating that SPO is "THE" minimum possession however it can be rebutted to het MORE POSSESSION for a JMC.
  • **NOTE: I know of no statute or laws that states the a rebuttal of a presuption must be at the deteriment to the person**