Under Texas law, what many people call “child custody” is more precisely divided into conservatorship (legal custody: who makes major decisions for the child) and possession & access (physical custody / time with the child).
- The default expectation in many cases is that both parents are appointed as Joint Managing Conservatorship (JMC): both parents retain rights and duties to make important decisions for the child (health, education, welfare).
- However, being JMC does not guarantee equal parenting time or 50/50 possession. Indeed, the law explicitly states that “joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession … to each of the joint conservators.”
- Instead, the usual default for scheduling physical custody is the Standard Possession Order (SPO), which typically gives one parent the majority of time and the other a smaller, defined share.
- There is also an Expanded Standard Possession Order (ESPO), available under certain conditions (for instance, parents living relatively near each other), which gives the non-primary parent more time — but still stops short of true 50/50.
Thus, in Texas, “50/50 custody” (i.e., equal or near-equal time-sharing) must generally be specially requested and justified; it is not the default, even if both parents are JMC.
Because each custody case depends heavily on facts (parenting history; child’s needs; work schedules; proximity of parents’ homes; stability; history of abuse or neglect; etc.), courts do not — and cannot — guarantee 50/50 possession. Nonetheless, broad data gives a picture of what tends to happen in practice.
- According to recent analyses, fathers in Texas receive on average only about 33% of parenting time.
- This 33% figure aligns roughly with a national average (~ 35%) for non-custodial parents in shared-custody or visitation arrangements.
- The dominance of non-equal time (rather than 50/50) is reinforced by the fact that the standard or expanded Standard Possession Orders remain the most common schedule in Texas.
- Legal observers and family law firms describe 50/50 possession orders as relatively uncommon in contested cases, typically arising when the parents themselves agree (or when circumstances strongly favor parity).
In short, while some parents do achieve near-equal time, the empirical norm leans heavily toward one parent (often the mother) having a larger share.
Key Factors Courts Consider When Deciding Possession
Because Texas courts make possession decisions based on the child’s “best interest,” several fact-specific factors influence whether 50/50 is seen as appropriate. These include:
- The child’s physical, emotional, and developmental needs and whether equal time supports those needs.
- Each parent’s ability to provide a stable home environment, including consistent routines, schooling, extracurriculars, etc.
- Whether the parents are capable of co-parenting cooperatively, communicating and making shared decisions — 50/50 time works best where conflict is low.
- Geographic proximity of parents’ homes (especially relative to schools, childcare, extracurriculars) — frequent moves or long distances make equal time more disruptive.
- The child’s age, maturity, and, if age 12 or older, the child’s preference (judges may speak privately with older children about their wishes).
- Any history of abuse, neglect, substance use, domestic violence, or other risk factors — courts prioritize safety and emotional well-being over parental “fairness.”
- Practical scheduling considerations: parents’ work schedules, ability to exchange the child, consistency for schooling, extracurriculars, social life — anything that affects the child’s stability.
All these are part of the overarching legal standard, the “best interest of the child.”
Estimated Probability of 50/50
Because there is no centralized statewide database that tracks “50/50 possession granted vs. requested,” one cannot reliably say “you have a 30% chance” or similar. However, based on the combination of law, statistical averages, and expert commentary, a reasoned estimate can be offered — with caveats.
Likely probability ranges — in a contested case without mutual agreement:
- If both parents are relatively equal in their caregiving, stable, cooperate, live close by, and child’s schedule can support it: moderate chance (maybe in the ballpark of 20-40%) of achieving a 50/50 or near-50/50 possession schedule.
- If there are complicating factors — big differences in work schedules, one parent less involved, long distance between homes, school or extracurricular commitments, or child’s young age — the chance drops substantially, perhaps to single-digit percentages.
If both parents agree on 50/50 and propose a parenting plan (especially early, through mediation or negotiation): the odds improve significantly. Courts tend to approve mutually agreed parenting plans that appear reasonable and in the child’s best interest.
Key caveat: The presence of conflicting versions of “what’s best” — especially if one parent argues for stability with one “primary” home — often results in the standard or expanded possession schedule rather than equal time.
In practice, what the data suggests — and what many family-law practitioners echo — is that 50/50 possession remains the exception rather than the rule in contested cases.
Why It’s Hard to State a “Probability”
There are several reasons:
- Individuality of cases: Each family’s situation — parental cooperation, history with the child, home environment, school calendars, distance, parental work schedules, child’s needs — can differ wildly. Texas courts are not bound by a one-size-fits-all rule; decisions are highly fact-driven and discretionary under the “best interest” standard.
- Lack of public data: There is no reliable, statewide statistical registry that tracks and publishes the percentage of custody cases resulting in true 50/50 possession time. What we do have are anecdotal reports, law-firm summaries, and small-sample studies (e.g., some national custody-time surveys), which are not sufficient to support a precise probability.
- Changing legal and social context: Over time, family courts, societal norms, and legislative proposals shift. For example, a proposed “equal parenting” bill (HB 803) sought to create a presumption of 50/50 parenting time for fit parents, but the bill died in committee and thus did not change the law. Courts’ openness to 50/50 may vary by county and judge; what’s feasible in one court might be unlikely in another.
Because of these factors, any “probability” must be understood as a rough estimate — not a guarantee or a predictive formula.
What Does This Means for a Parent Trying to “Win” 50/50 Possession?
If you are a parent in (or anticipating) a custody case and hoping for 50/50 possession, the legal and empirical landscape suggests:
- Do not assume joint conservatorship equals equal time. The common outcome remains a standard or expanded possession schedule — especially in contested cases.
- If possible, seek mutual agreement with the other parent for a 50/50 parenting plan. When both parties propose a thoughtful, realistic plan that serves the child’s best interest, courts are more likely to approve it.
- Focus on demonstrating factors that favor equal time: cooperative co-parenting, stable housing, geographic proximity, similar routines, child’s needs, minimal disruption, and a clear schedule for exchanges.
- Be realistic about obstacles — long distance, opposing work or school schedules, a child’s age or needs, or history of conflict — may make 50/50 difficult or inadvisable in eyes of the court.
- Consider mediation, negotiation, or a parenting plan agreement, which may have a better chance of success than a court-imposed 50/50 schedule.
Conclusion: 50/50 Is Possible — But Far from Probable
In summary, under Texas law, 50/50 possession of a child is possible — but it is not the default. The law presumes parents become joint managing conservators, but does not presume equal time. Rather, physical custody (“possession & access”) is determined by what the court finds to be in the child’s best interests.
Statistical snapshots and practitioners’ experience indicate that the typical result for non-custodial parents is significantly less than 50% of time (often around 30-35%). True 50/50 or near-50/50 arrangements tend to remain the exception, especially when parents cannot agree.
Thus, for any given contested custody case, a “winning” 50/50 outcome is probably less than 50–50 — perhaps on the order of 20–40% (and lower when complicating factors exist), though this estimate is highly speculative. If both parents agree and present a good plan, odds improve substantially.
Because of the many moving parts — parental cooperation, child’s needs, home stability, schooling, logistics — no lawyer or researcher can promise 50/50. What you can do is build the strongest possible case for why equal time serves your child’s best interest, and approach the process realistically, with flexibility.
Please contact Roland Barbosa, Attorney at Law, to discuss your case and your facts to determine the best options for you to be a co-parent with equal possession times.
