For Visitation to be refused during the COVID-19 pandemic, I imagine that the rationale behind apparent doing so would be out of concern for their child’s health and safety. Whether or not these are valid concerns, it is unlikely that obvious would be able to do so under orders contained in their final decree of divorce. For example, you may feel very strongly that your child needs to be in your home and away from other people right now due to concerns over the virus. Even if these concerns are valid, if you choose to withhold Visitation from your co-parent, you would likely violate your final decree of divorce.
Although the stakes seem to be higher with health and while being now than ever before, the reality of the situation is that your co-parent could deny you Visitation at any time regardless of whether or not there is a pandemic ongoing. From my experience as a family law attorney in Texas, I can tell you that parents think of creative ways to deny Visitation for their co-parents with some regularity. The key for you as a vigilant co-parent is to understand why your Visitation may be withheld and what you can do in response to having time with your child taken away from you wrongly.
For starters, you should understand that within your final decree of divorce, there is a parenting plan which lays out the schedule that you and your ex-spouse maintain regarding possession of your children. You may hear this schedule referred to as a standard possession order or even as a visitation schedule. Each day of the year is assigned to one parent or the other. This way, you and your ex-spouse do not need to spend each day or week negotiating through which will have your child. If you would like to have a more flexible arrangement through your ex-spouse, you may do so, but the final divorce decree contains default orders if you cannot negotiate anything new with your co-parent directly.
It is good advice for you to be able to become familiar with your visitation schedule. You may think that you are aware of all the intricacies and details of the plan, But in reality, if there is a problem with having Visitation withheld from you, the only person who can stand up for you and assert your rights would be you. A judge is not going to file a lawsuit for you or contact your ex-spouse. You must be the one to go through these steps if Visitation is wrongfully withheld from you in the future.
It is a good idea for you to take out a copy of your final decree of divorce in review very carefully; this section deals with parenting and Visitation. While the final decree of divorce does contain specific instructions on which parent is to have your child on a particular day, it does not do so with the aid of a calendar. You must be able to take the written instructions contained in your find creative divorce and translate them into a day-by-day schedule for you and your family to maintain. I think it is beneficial to take the words from your final decree of divorce and translate them onto a calendar so that your eyes and brain may understand them better.
The best time to ask questions about a final decree of divorce and its parenting plan is before the end of your divorce. If something doesn’t make sense to you or you need clarification, then talk to an attorney about those problems before it is too late period; if your divorce is already over with, then I would recommend you seek out the counsel of a family law attorney. Many attorneys will provide you with a free-of-charge consultation in which you can ask questions and receive answers about prior court orders. You may find out that you were interpreting a particular section of your orders incorrectly. The attorney may confirm that you need to file a lawsuit in response to violations of that order.
You ultimately need to understand that having Visitation withheld from you can occur for a wide range of reasons. If you are under the impression that this pandemic is the only reason why Visitation may be withheld from you, you are mistaken. There is any number of reasons why Visitation may be withheld from you. I would recommend that you speak directly to your ex-spouse about what each of your expectations is concerning holding back Visitation with your child. These are lessons that you can learn from one another that can help you after this pandemic has passed us by.
For example, you may think that your child needs to be made available for visitation purposes, even under the weather. You may figure that you are just as capable of caring for your child as your spouse and that your child needs to be with you and they are ill. However, your ex-spouse may take an opposite perspective and believe that your child should be kept in the home where they got sick in the first place, rather than traveling to see another parent. If you know what to expect as far as Visitation occurs before a problem presents itself, you will not be surprised if your ex-spouse holds Visitation in that regard. Two of you should attempt to reach a resolution to this subject based on your child’s best interests.
When Visitation is wrongfully withheld from you during the coronavirus pandemic
the hope that we all have is that this pandemic is genuinely a novel and rare occurrence. I don’t think anyone out there would like to live through this time again. With that said, there are some unique characteristics and circumstances in place that probably will not be apparent in the months and years to come. For instance, most of us have a dramatically more significant concern over our well-being now than we did six months ago. I’m sure we all washed our hands before the pandemic, but now hand soap is flying off the shelf like never before.
My point in mentioning this is to say that you and your ex-spouse may have unique concerns for the health and well-being of their children that would likely never come up again once the pandemic has passed us by. As a result, you all need to plan for occasions where your child or one of you became ill with the coronavirus. I already mentioned how you and your ex-spouse might have different views on whether or not your child should travel when they have a common cold. What you also need to talk through is what should happen and what is reasonable to expect from one another when it comes to your child or yourself getting sick with the virus.
For instance, is it appropriate for your child to leave home once diagnosed with the virus? You would need to speak to your child’s pediatrician about this specifically. If a doctor says that your child should not be going from home to home while displaying symptoms, you are too far from the doctor’s instructions. This may mean that one parent or the other loses time in the short term with your child. However, keep in mind that there is almost always an opportunity to make up time with your child when they are feeling better and when time allows. Again, this goes back to what we talked about earlier when I came to see you and your co-parent working together to manage time and Visitation schedules when and if someone were to get sick.
These are the steps that I think you need to take if and when someone in your family gets sick with the coronavirus. I hope that nobody gets sick from the virus, and then everyone stays healthy throughout this pandemic. Given the history of the pandemic in our area, it’s clear that there is at least a possibility that someone in your family may become ill. If that is the case, then you should defer to your child’s doctor and your judgment as parents in determining if alterations to the standard visitation schedule contained in your orders need to occur.
How to handle a situation where Visitation is wrongfully withheld
In the preceding section of today’s blog post, we discussed what may happen if and when you, your ex-spouse, or your child were to get sick with the coronavirus. At that point, it is no longer a theoretical discussion about withholding Visitation. We are talking about the actual need to consider what to do with the visitation schedule and how best to proceed.
Now, I would like to discuss a scenario where nobody is sick, and there are no specific and objective concerns that would lead to the need to discuss altering a Visitation schedule. Instead, let’s think about a circumstance where your ex-spouse wrongfully withholds Visitation from you due to a general concern about the health and safety of your child. Again, nobody is sick with the virus, and your child does not have any specific health concerns that would make them more susceptible to catching the virus in the first place. This is more or less a situation where your ex-spouse is withholding Visitation from you for no good reason in particular.
While this is no doubt a frustrating situation for you and your family, I would recommend that you do everything possible to speak directly to your ex-spouse about this problem and about how it can be resolved amicably between the two of you. It may be that your spouse is well-meaning but overprotective of your child. You may be able to assuage her fears over the cleanliness, safety, and preparedness of your household to care for your child during this pandemic. You may be surprised to learn that your ex-spouse is more reasonable than you would have thought about this subject.
On the other hand, if your ex-spouse chooses to withhold possession In Visitation of every child from you wrongfully, you have two options. Suppose you are a trusting, impatient person. In that case, you can always attempt to negotiate through this problem and argue for additional time to have your child during the fall when this pandemic has theoretically passed us by. this is not a wrong way to go especially if you believe that a resolution can be worked out directly with your ex-spouse.
If you cannot communicate with your ex-spouse through this problem, you would likely need to file an enforcement lawsuit through your family court. An enforcement lawsuit seeks to enforce the terms of your family court order by specifying the number and nature of violations as well as the specific events that led to each violation. You would need to present evidence to substantiate each alleged infringement. Your ex-spouse would be able to present evidence as to why a violation did occur and was justified in nature or did not occur at all.
Suppose you are successful in your enforcement lawsuit. In that case, your ex-spouse could be ordered to pay your attorney’s fees, pay fines towards each violation, and be requested to provide you with make-up dates of Visitation for those wrongfully denied of you. It is highly recommended that you hire an attorney to represent you in an enforcement lawsuit due to the complex nature of these cases.
Questions about the material presented in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material presented in his blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, in via video. These consultations are an excellent way to learn more about Texas family law and our law office’s services to you as a client.