The question of whether or the COVID-19 pandemic is one that is important to many families in southeast Texas. If you have recently gone through a family law case, or were in the middle of one when the pandemic hit, then you know how important it is to have an opportunity to spend time with your child. Now that many of us are in our homes for most of the day it is an issue that hits home even more.
Health and safety of ourselves and our children are the top priorities for everyone right now. The fact that our state and local government leaders shut down the economy for weeks on end speaks to the seriousness of the virus and its impact on our collective health. I hope that everyone reading this blog post today is safe and healthy.
Child custody is a pretty broad term that is used by different people to mean different things. I know from having heard clients and past clients of the Law Office of Bryan Fagan use the term it can range in meaning from the periods of time that you are able to be in physical possession of your child to the rights and duties that you have in relation to your child. Since different people use the term to refer to different things we should take a look at what child custody means in the area of Texas family law.
What does child custody mean in regard to Texas Family Law?
When I think about child custody and describe what it means to a client or potential client of our law office, I am referring to issues related to possession, rights and duties of your children. Anyone who has been involved with a child custody case before can tell you that no one topic is more important than another, so let’s take some time to walk through each of them.
The periods of time that you are able to be in possession of your child will be spelled out in the parenting plan of your final decree of divorce. Typically speaking, you or your ex-spouse will be named as the parent with whom your child resides primarily and the other parent will have visitation rights with your child. With this set up comes the duty to pay child support and the right to receive child support.
Rights and duties in relation to your child mean that both you and your child’s other parent have the right to make certain decisions on behalf of your child and also the duty to provide for your child. Parents share these rights according to the terms laid out in their court orders. You all may share most rights, have independent rights to make certain decisions or have the sole right to make other decisions. It all depends on your particular circumstances. Educational, medical and psychiatric matters are examples of the areas of your child’s life where you will be given the right to make decisions on their behalf.
It is all of these issues, not just how much time you are going to be able to spend with your child moving forward, that is at issue in a divorce or child custody case. When you are entering into a family law case you need to be aware of the totality of the issues so that you can make wise choices about the decisions you will be asked to take a position on in your case. There is no doubt that these are some of the most difficult choices you will have to make in your life. That is why we recommend that you at least speak to an experienced family law attorney before you move forward with a divorce or child custody case.
Planning on what role you will play in your child’s life moving forward
We have talked some about what child custody means in a general and a more specific sense as it relates to a Texas family law case. Now that we have done so, I think it makes sense to anticipate how you may fit into your child’s life as a conservator of him or her. A conservator is the technical, legal term for a person who has rights and duties in relation to another person. A parent is a conservator of their child. An adult can also be a conservator of another adult if that adult is unable to make decisions for him or herself, for example.
For starters, there is no hard and fast rule in relation to what parent ends up fulfilling what role in the life of their child after a family law case has concluded. For instance, I know from experience that many parents assume that the mother will end up being named the primary conservator of their child and the father will be the non-primary conservator. This means that the child would come to live with mom after a divorce, while dad would get visitation time on the weekends. Child support would be paid from dad to mom in order to make up for the disparity in time that mom has to support the child financially while he or she is in mom’s possession.
While there may have been some degree of preference for this sort of arrangement in years past it is not true that courts assume that this is the set-up that is best for a child. In fact, the family code in Texas specifically states that no preference is to be given to either parent based on gender when it comes to assigning rights, duties and possession time in a child custody or divorce case.
More often, fathers tend to cede primary custody of their children in an indirect way to mothers. The way that this is done is fathers, in an attempt to reduce conflict, will leave the house where they had been living with their kids and move into an apartment or with family. What this does is present the judge with a situation where, if challenged, a mother can point out that the father has voluntarily left the children with her. Not wanting to upset the dynamic of the home, a judge is more willing to leave things as they are for temporary orders. Final orders usually do not see dramatic shifts in living arrangements.
What I would offer to fathers or parents of any kind who want to be considered for primary conservatorship of their children would be to remain in the home if at all possible. If your situation is a dangerous one then you should remove yourself and your children from the home. Otherwise, it would be advisable to remain in the home for the sake of your kids and for the sake of your case. Leaving the house can be disastrous if you intend to push for primary custody.
Keep in mind that being a possessory conservator of your child means paying support
One of the key points to the discussion regarding primary custody versus non-primary custody of your children is that the non-primary parent is typically on the hook to pay child support. Child support is determined by multiplying a percentage of your net monthly income based on how many children you have before the court. The more kids you have the greater percentage of your net monthly income would be devoted to child support.
In a time where you may have lost a substantial amount of income due to the economic shutdowns associated with the coronavirus, I would recommend that you become very well acquainted with the laws associated with what counts as income for the purposes of calculating child support. What your income was at the beginning of your case may no longer be what it is now. Be sure to update your attorney on your employment situation before your case comes to a close.
Child support is paid directly to your ex-spouse usually by withholding the amount of monthly child support from your check. A wage withholding order will be signed by the judge in your case prior to its conclusion and submitted to the your employer. The human resources department at your work (or whomever is in charge of payments) will then be instructed to withhold a certain amount of your check each month and to send that to the Office of the Attorney General (OAG). The OAG is in charge of distributing child support to your children via your ex-spouse.
Where does COVID-19 stand to impact your child custody circumstances?
These are clearly not normal times. My typical response to a question of how the flu season stands to impact your child custody circumstances would be: not much, if at all. People do not insert language into their child custody orders which details sickness, etc. grounds to alter the nature of your parenting plan. However, as we learn more about the longevity of the COVID-19 virus that may be something that is in the cards.
However, I do not want to speculate about what you or anyone else may do with their child custody orders moving forward. It’s my sincere hope that this virus fades into oblivion (much like a similar virus “SARS” did in 2003 and 2004). However, as it stands for you and your family the virus is a reality that you need to work through in order to accomplish whatever various family court goals you all have.
First, I would point out that it is entirely possible that you or your children could get sick. Again, this is true and has been true for the entirety of your life, your child’s life and all of our lives. For now, understand that your child custody orders will need to be modified, even it is means doing it informally, if one of you gets sick. You should talk to your ex-spouse and see how they want to handle that sort of situation.
It may mean that the sick person needs to actually go into a quarantine situation for a period of a few days or weeks in order to ensure that he or she does not infect anyone else. The non-sick parent would care for the child while the sick parent recuperates. If your child gets sick then the parent who is already in possession of the child should retain possession until he or she gets well and tests negative for the virus. Any parent or family member who comes into contact with the child should get tested as well, I imagine.
For the parent who has to give up possession time due to the illness, he or she should be able to work out with you some make up visitation time. That would only be fair. He or she should not be penalized for getting sick. The same would be true if your child got the flu or one of you or your ex-spouse got sick. It’s common sense and good co-parenting.
The other issue related to coronavirus and child custody would be the aforementioned concerns regarding child support. If you lose your job you should contact the OAG and your ex-spouse (not necessarily in that order) to speak with them directly about your upcoming problems in paying support. You can work something out with your ex-spouse to temporarily reduce your child support payments or you can go to the judge in your case and attempt to formally reduce child support obligations as a result of your lessened income.
Questions about child custody and COVID-19? Contact the Law Office of Bryan Fagan
If you have any questions about the content of today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week via phone and video conference. Our physical office location is closed to the public right now to keep everyone safe and healthy, but we are working behind the scenes on behalf of our clients and their families despite the pandemic.