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Losing child custody during COVID-19

The topic on all of our minds right now is that of the COVID-19 pandemic. We all have our own opinions on the issues surrounding the virus and I am not too keen on discussing those in depth right now. What I would like to get into as the topic of today’s blog post is how child custody issues can be impacted by the pandemic and how you can protect yourself and your family from bearing brunt of those changes brought about by the virus. We are all potentially at risk of being impacted in ways that go well beyond getting sick in regard to family law cases. 

Take note that the virus itself has infected thousands of people in southeast Texas and has even led to the loss of life of hundreds in our region. Outside of that group of people, the rest of us have had the psychological impact of being fearful that we are the next ones to get sick. We are also aware that our livelihoods, physical mobility and social interactions have all been limited as a result of our local government’s reactions to the pandemic. Life as we know it truly has been turned upside down- if only temporarily.  

If you are a parent, then undoubtedly you have concerns regarding your child and their ability to remain healthy throughout the time period where the virus is impacting our lives. When our kids get sick that worries us. It can be a helpless feeling to see our own children have to battle through an illness of any kind at any time. However, with this particular virus I think it is made to be much worse because of how we have all been made aware of how serious it can be. 

Fortunately, the data bears out that thus far children are not the primary age demographic group that is at the most risk of becoming infected with the virus. With that said, it is entirely possible that someone in your family may become ill with the virus. If you and your family are living in the same home then you all would work together to keep the sick person isolated so that he or she can get well while the rest of you stay healthy. Once the sick person gets better you could resume your lives on a somewhat normal basis. 

However, if you are involved in a family law case then your reality is quite different than this. Imagine that you are a parent who has recently gone through a divorce and have a standard possession order in place that allows you to be in possession of your child on the first, third and fifth weekends of each month. You and your children have been acclimating to this schedule over the course of the past few months and were just starting to hit a groove in your lives. 

The next thing you knew, your child came down with a case of the coronavirus. While she is in good spirits and never had to go to the hospital or anything like that, she has had to rest quite a bit and stay with her mother during this time. Not wanting to infect any new people means that you have not been able to see your child, other than by video phone calls, in almost three weeks. You have a concern that once your child gets well, her mother will still not allow her to come to your house out a fear that she will get sick again.  Are your fears justified and is there anything you can do in the event that you lose custody time because of the COVID-19 virus?

Today’s blog post from the Law Office of Bryan Fagan will cover the topic of what can happen during this pandemic time period where you could lose time with your child. I will share with you what scenarios may present themselves and how you can deal with them. The solutions that I lay out for you will include instructions on how you can most efficiently put yourself in a position where you can have visitation rights restored to you and make up time scheduled in case you lose visitation time with your child.

When can a parent lose child custody in a Texas family law case?

The first question that I think we need to ask is when can a parent actually lose custody of their child? If we are talking about a full-on, complete loss of custody and all rights and duties to a child, I would tell you that it is very difficult to lose custody in this way. Termination of parental rights is more closely linked to when a parent either voluntarily relinquishes those rights or when the other parent/state of Texas petitions a court to terminate your parental rights. As I’m sure you could imagine, a court will not be excited to terminate your parental rights and would only do so in extreme situations. 

To terminate a parent’s parental rights is to do so with no ability to restore them. Once the parental rights are eliminated that is essentially all she wrote on that topic. Abuse, neglect or drug use are common factors that lead to the termination of parental rights. Absent one of these circumstances it would be difficult for me to envision a time and place where your parental rights would be terminated, and you would lose custody to your child in this way. 

On the other hand, it is possible for a parent to have their visitation time with their child decreased in the years following the rendition of a court order dealing with this subject. For instance, you may have been able to negotiate for split custody with your spouse in your divorce which awarded you all custody split 50/50. Many parents enter into a divorce or child custody case with this specific goal. 

What happens many times after the 50/50 parenting plan goes into effect is that one parent may get a new job or have some new circumstance arise that negates their ability to see their child as frequently as a 50/50 possession schedule requires. You may have been working the day shift at your job when you got divorced. However, if you got moved to night shift which requires significantly more time away from home that means that you may not be able to take your child on all the weekly overnight visits required under this parenting plan. 

In that case, you and your ex-spouse have a few options to consider. Option number one involves your ex-spouse not filing a lawsuit which seeks to modify and change the possession schedule that you have in order to take into consideration your new work schedule. Option number two allows you and your ex-spouse to negotiate an informal modification between the two of you. You would not have to go to court to get this done. You can save time and money- and potentially a great deal of both. 

This would be the most common scenario that I could see playing out during this pandemic. Your work had to lay other people off from their jobs. As a result, your company is pulling people from the daytime shift to work at night until the economy picks back up and they can hire new works. You are not only having to adjust your sleep schedule, but also your possession schedule with your child. What can you do in this situation to avoid finding yourself in court facing a modification lawsuit?

First, you should give your ex-spouse an opportunity to learn about these changes from you directly. Do not email or text an update on this. He or she will have questions and questions are best answered in person or over the phone. Do not type out a three-page email detailing the changes at work. If you can provide direct updates it is more likely that your ex-spouse will voice an understanding of your situation and help you to get any make up visitation that you are owed.

Ask your ex-spouse if she would be agreeable to coming up with an informal, modified possession schedule. It will not be easy to do this since you work nights, but I am willing to bet that the two of you can put your own interests aside and work out a schedule that is best for your child. By doing this you can avoid going to court with the judge and will not have to spend the money inherent in doing so. 

Somebody gets sick- time for makeup possession time once everyone is healthy

As we mentioned at the beginning of this blog post, it is possible that you or your child (or their other parent) may get sick during this pandemic. Odds are you will not get sick with the virus, but rather with a common cold or other illness possibly related to your not being able to see your primary care doctor due to the shutdowns. If this happens to you or your child, then you have some decisions to make as far as how to handle visitation time. 

The responsible and safe thing to do would be to keep your child away from the sick parent until he or she gets better. If your child becomes ill then he or she should be the one to be quarantined. Here is where that gets tricky. Suppose that your child gets sick right before she is scheduled to come to your house for a longer summer stay here in a few days. Since the school year is officially over at this point it is entirely possible that your child could have been getting ready to come see you. Now that she is ill it is likely that she will be staying at home with your ex-spouse. 

How can you get any make up visitation time with your child and not run the risk of “losing child custody” during the pandemic? First, I would seek updates as often as possible from your ex-spouse and your child on how she is doing. Obviously, your primary concern is her health. You can worry about make up visitation time later. Facetime, regular old phone calls and other methods of utilizing technology should be employed during this time.  Remember that your child is sick right now and needs reassurance. She probably misses you a great deal, as well.

Then, once your child is on the mend and is better physically you can work out a schedule to start to get the make-up visitation time that we alluded to a moment ago. Keep in mind that if you lost two weeks of visitation time you do not have to demand all that time up front. Dividing it out over time may be less jarring to your child’s schedule. 

In the event that your ex-spouse does not allow you to negotiate for make-up visitation time, the option that you could pursue would be to file for an enforcement lawsuit. Your ex-spouse has violated the order that allows you a certain period of visitation. Your ex-spouse cannot withhold your child from you for no reason now that he or she is healthy and feeling better. Review your court orders to see what they call for in the event that make up visitation time is required. Speak to an experienced family law attorney if you need help in this regard. 

Questions about family law and the pandemic? Contact the Law Office of Bryan Fagan 

If you have any questions about the material that we discussed in 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 video and phone. If you are considering filing a family lawsuit or just want to learn more about the services that our office provides to client please get in touch with us today. It would be our honor to serve you and your family just as we have done for other families in our area. 

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