Birthdays and the Texas Family Code – Somebody Didn’t Think This Through

I just celebrated another birthday recently. I say another because they seem to come faster at my age. This birthday got me thinking about birthdays in general – their role in life, their significance, their importance to families. Everyone is loved on their birthday. Think about it. The meanest person you know will find some way to offer you a congratulatory “Happy Birthday” if it happens to be your day. Strangers will wish you a Happy Birthday if someone tells them it is your day. Groups of waiters and waitresses will sing an off-tune chorus of Happy Birthday and present you with a free piece of cake topped with a single candle. Everyone knows the saying and country-western song proclaiming that everyone should live their life like they were dying. Well, I say to live your life like every day is your Birthday and make sure you tell everyone it is.

Birthdays are especially important in families. I think birthdays in families are rallying points for the marriage because it marks another year of being together as a family. Mothers and Fathers “raise” their children so each birthday a child celebrates is an exclamation point to them doing their job. To the children, it is friends over, cake and ice cream, and being “special” for that day. Birthdays are put simply, a win-win for everyone.

So, how does the law treat birthdays when families divorce or split? Oddly, for the importance of the day, not very well. If the possession schedule under which the parents are operating states you are not in possession of your child on his or her birthday, you get from 6:00 p.m. until 8:00 p.m. on that day. However, you are required to go pick up your child from the other parent’s home and then return the child back to that home. Two hours? Really? It’s hard to get into a restaurant and eat a meal in two hours, let alone celebrate a birthday. How are you going to “pick up” your child if your child is on vacation or out of town with the other parent in Florida? Unfortunately, I have seen this trick pulled more than one time in my 40+ years of practicing law. Yes, ex’s will do this and whether it is intentionally or negligently the result is the same.

The law only gives you the child that is celebrating the birthday – not any brothers or sisters he or she might have. Most lawyers will try to correct this in the Final Decrees and Orders that are signed by the Judge. The Final Order can provide that the parent out of possession gets the child and all siblings for that two-hour period. Technically, there is no basis for this provision.

The lawmakers also completely left out parents when they conceived this plan for handling birthdays in a divorced family. There is no legal requirement that you get to see or have your child for your birthday. While I understand as we get older that one day that is your Birthday seems to spread out over days and weeks, there usually is some concession given to the actual day of your birth. Nope. No children unless they are actually in your possession.

If parents don’t have an allotted time for their birthdays under the Texas Family Code, you must know that grandparents, great grandparents, or Aunts and Uncles' birthdays will be in the Final Order at all. I have seen too many times Nana’s 90th Birthday not be attended by grandchildren or great-grandchildren because divorced parents can’t cooperate to allow this historic family event to include the grandkids.

Birthdays are the icing on the cake of parenting. Moms and Dads will remember their children’s birthdays for years down the road even when their child can’t remember even being there. Birthdays are the glue that holds decades of togetherness as a family – be it intact or split – firm in our memories. Our lawmakers should have done a better job of planning how we share birthdays when families split. But – they didn’t.

So, it is up to us to keep the purpose and meaning of birthdays alive and well despite the travails of the family. How can this be done? Remember that a birthday marks a child’s – or our – anniversary of time. The hard work, the love, the nurture, and the lessons parent’s taught during the 365 days in between are what matter. To this end, Abraham Lincoln said it best:

“And in the end, it’s not the years of your life that count, it’s the life in your years.”

Happy Birthday everyone – in case I forget next year!

Related Posts
  • What Is the “best Interest of the Child Standard”? Read More
  • Final Divorce Order Read More
  • Divorce Complaint Read More