ESPO Is Now the Default in Texas: 2025 Custody Changes

If you are a noncustodial parent in Texas, the default custody schedule just got significantly better for you. Effective September 1, 2021, the Texas Legislature passed SB 1936, which made the Extended Standard Possession Order the default schedule for parents who live within 50 miles of each other. This means noncustodial parents who do nothing — who make no special election — automatically receive more overnight time with their children than they would have under the old Standard Possession Order.

At Griffin & Cain, Attorneys at Law, we have written extensively about this change, and our ESPO guide remains one of the most comprehensive resources available. But many parents — especially those with orders entered before September 2021 — still do not understand what changed, how it affects their existing schedule, and whether they need to take action.

What Changed: Standard vs. Extended Possession

Under the old Standard Possession Order, the noncustodial parent’s weekend started at 6:00 p.m. on Friday and ended at 6:00 p.m. on Sunday. Thursday visits ran from 6:00 p.m. to 8:00 p.m. — no overnight. Summer possession was 30 days for parents within 100 miles.

Under the Extended Standard Possession Order, the noncustodial parent’s weekend begins when school lets out on Friday and does not end until school resumes on Monday morning. Thursday visits now include an overnight — the child stays Thursday night and returns to school Friday morning. This means the noncustodial parent gains several additional overnight stays per month without having to petition the court for extra time.

The practical difference is substantial. Under the old schedule, the noncustodial parent had possession roughly 30-35% of the time. Under the ESPO, that number rises to approximately 43-45% — approaching a near-equal division of time.

Who Gets the ESPO Automatically?

The ESPO is now the presumptive schedule for all orders entered on or after September 1, 2021, where the parents live within 50 miles of each other. The noncustodial parent does not need to request it — it applies unless a party affirmatively opts out or the court finds the expanded schedule is not in the child’s best interest.

For parents who live 51 to 100 miles apart, the ESPO is available but must be elected. For parents who live more than 100 miles apart, the ESPO does not apply — they follow the long-distance schedule with one weekend per month and extended spring break and summer periods.

What if your order was entered before September 1, 2021?

If your custody order predates the ESPO default, you are still on the old Standard Possession Order unless you have already modified it. The law does not retroactively update existing orders. To move to the ESPO schedule, you need to either agree with your co-parent to modify the order (an agreed modification) or file a contested modification with the court.

This is a common scenario we see in Montgomery County. A parent with a 2018 or 2019 divorce order calls our office asking why they are not getting the expanded schedule they keep hearing about. The answer is always the same: the expanded schedule is available to you, but you need a new court order to access it.

How the ESPO Affects Summer 2026

The ESPO summer provisions work similarly to the standard schedule — 30 days for parents within 100 miles, with an April 1 notice deadline. The main difference is pickup and drop-off timing. Under the ESPO, exchanges reference school dismissal times rather than fixed 6:00 p.m. clock times, which can be confusing during summer when school is not in session.

During summer months when school is out, the ESPO’s school-based timing reverts to specific clock times outlined in your order. If your order says “the period of possession begins when the child’s school is dismissed,” and school is not in session, the order should specify a fallback time — typically 6:00 p.m. Check your order carefully for this language, because ambiguity in summer exchange times is one of the most common sources of co-parenting conflict we handle.

Can the Other Parent Block the ESPO?

For orders entered after September 1, 2021, the ESPO is the default. The custodial parent cannot unilaterally opt out. However, a party can ask the court to deviate from the ESPO if they can show the expanded schedule is not in the child’s best interest. Common arguments include the child’s age (infants and toddlers under 3 may have different attachment needs), distance between homes (even within 50 miles, a 45-minute drive may not be practical for a Thursday overnight when school starts at 7:30 a.m.), and demonstrated inability to manage the child’s school routine.

In practice, Montgomery County courts apply the ESPO in the vast majority of cases involving children age 3 and older where both parents live within 50 miles. The statutory presumption is strong, and overcoming it requires specific evidence — not just a preference for the old schedule.

ESPO and Child Support: Does More Time Mean Less Support?

This is one of the most frequent questions we hear. The short answer is no — not automatically. Texas child support is calculated using a percentage-of-income model under Texas Family Code §154.125, and the guidelines do not adjust based on how many overnights each parent has. The noncustodial parent pays the same guideline percentage whether they have the child 30% of the time or 45% of the time.

However, there is a narrow exception. Under §154.123, if the court orders a possession schedule that results in a “substantially equal” division of time, the court may consider each parent’s net resources and actual expenses when setting support. Some attorneys argue that the ESPO’s 43-45% division approaches “substantially equal” territory. In our experience, Montgomery County courts have been reluctant to reduce guideline support based on the ESPO alone, but the argument exists and may gain traction as the ESPO becomes more established.

If you believe your child support obligation should be adjusted based on your expanded possession time, consult with an attorney before filing. The analysis depends on your specific income, the other parent’s income, and the exact terms of your order.

What About Holidays and Birthdays Under the ESPO?

The ESPO holiday schedule mirrors the standard holiday schedule — alternating Thanksgiving, Christmas, and spring break between even and odd years. Mother’s Day always goes to the mother. Father’s Day always goes to the father. The child’s birthday follows the possession schedule unless the order specifies otherwise.

One area of frequent confusion: when a holiday period overlaps with the ESPO’s expanded weekend, the holiday schedule takes priority. If it is your weekend under the ESPO but the other parent has Thanksgiving, you lose that weekend. The holiday provision supersedes the regular schedule.

Steps for Montgomery County Parents to Take Now

If your custody order was entered before September 2021 and you want the ESPO schedule, start by reviewing your current order to confirm what schedule you are on. Then open a conversation with your co-parent. If you can agree to modify, the process is faster, cheaper, and less adversarial than a contested modification.

If agreement is not possible, you will need to file a modification petition in the court that has continuing jurisdiction over your case. In Montgomery County, that is typically the 284th, 410th, or 418th District Court, depending on which judge handled your original case.

Griffin & Cain handles custody modifications in all Montgomery County and Walker County courts. Call (936) 441-2999 to schedule a free consultation and find out whether the ESPO schedule is available for your family. We serve parents in Conroe, The Woodlands, Magnolia, Willis, Huntsville, and throughout the region.

Griffin & Cain, Attorneys at Law, PC

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