How COVID-19 has caused confusion regarding possession in child custody matters
Over the past week, the Evans Family Law Group has been inundated with calls from concerned parents regarding the handling of possession and access under the Coronavirus extended spring break and school closures.
If you have children subject to a court-ordered visitation schedule, you may be confused regarding when the exchange should occur during spring break and what happens if the closures continue for an extended period because most of the standard language in these visitation orders are that the children are returned to school at the time school resumes following Spring Break or at 6:00 pm on the Sunday before school is to start following Spring Break.
Thus, some confusion has arisen with regard to the terminology of “extended spring break” and “school closure” and thereby “extending” the Children’s Spring Break Vacation. Accordingly, it shouldn’t surprise me by now, but a number of parents have elected to try and take advantage of the “moment’ with the Coronavirus crisis to “extend” their Spring Break holiday possession time due to the schools closing as a result of the virus concerns after Spring Break.
And, because the Courts are closed for non-emergency hearing through April 13th, there is not really a path to address this issue with the Courts leaving parents and attorneys alike at a very uncomfortable and tense impasse.
How the State of Texas handles child custody during COVID-19 / Coronavirus pandemic
As a result, on March 17th, 2020 The Texas Supreme Court issued a “Second Emergency Order Regarding the Covid-19 State of Disaster” which addressed this specific issue as it pertains to Standard Possession Orders and states:
“1. This order applies to and clarifies possession schedules in Suits Affecting the Parent–Child Relationship. For purposes of determining a person’s right to possession of and access to a child under a court-ordered possession schedule, the original published school schedule shall control in all instances. Possession and access shall not be affected by the school’s closure that arises from an epidemic or pandemic, including what is commonly referred to as the COVID19 pandemic.
2. Nothing herein prevents parties from altering a possession schedule by agreement if allowed by their court order(s), or courts from modifying their orders.
3. This Order is effective as of March 13, 2020, and expires May 8, 2020, unless extended by the Chief Justice of the Supreme Court.”
For your convenience, you can download the actual Order here: THE SUPREME COURT OF TEXAS SECOND EMERGENCY ORDER REGARDING THE COVID-19 STATE OF DISASTER
Texas school closures do not affect existing possession schedules in child custody matters
Accordingly, school closures stemming from the Coronavirus shall have no impact on the existing possession schedule and parents are required to continue following the possession schedules contained within their current Orders. Further, the Texas Supreme Court made clear that failure of parents to comply with this Order and willfully or wrongfully withholding their child can result in a finding of contempt, fines and attorney fees being levied against the non-compliant party.
We recommend using this opportunity to co-parent and demonstrate to your children that even in unprecedented and uncertain moments like this, that their parents are able and willing to act in their best interest and do the right thing. I strongly urge you to not use to take advantage of the other parent and withhold your child past the original schedule for the Spring Break vacation. As stated by the Supreme Court, you are both free to come up with any agreement that works best, but absent an agreement then follow the original schedule set forth in your current Orders.
If you do make such an agreement, for clarity I would put it in writing and make sure that you both confirm the terms of your agreement in writing whether by text, email , Our Family Wizard or otherwise.
Despite the virus concerns and school closings, remember that we are still considered in the regular school year, so normal school year periods of visitation remain in effect.
These are unprecedented times and a number of schools of announced closures anywhere from 4 to 6 weeks putting an enormous strain on families for child care, in addition to the stress and anxiety caused by the economic fallout of the virus, so who knows what all impacts on custody arrangements that will emerge. Please use best judgment and act in the best interest of your kids at all times while the kids are out of school, and make sure to keep the lines of communication open and transparent between you and the other parent.
If you are unable to reach an agreement and the child is not returned under the existing possession calendar, you may have recourse. Give us a call today.
As a reminder, we are offering to accommodate our clients and prospective clients with any questions and continuing to meet our clients’ needs through remote means. If you have any questions, our office number is (512) 628-2550 and if you are unable to reach someone for some reason, feel free to contact me at my cell phone at (512) 689-8319.
Evans Family Law Group