In the age of the coronavirus pandemic, it is important for you to understand that your family law needs can still be met by the legal community. If you are pondering a divorce, child custody case or any other matter there are attorneys who can represent you and take up representation of your cause. Additionally, the family courts are not completely closed and can hold hearings on your case- especially if it is an emergency. While the courthouse in your area may be closed to the public for the most part, you are not alone and left without help if you need it.
When you are moving through a divorce or child custody case the first step in that process is to file a case with the court in your county that has jurisdiction over your matter. Next, you will notify your opposing parent of the lawsuit and inform him or her of their need to respond to the lawsuit. Once a response has been filed (otherwise known as an Answer), you will be able to enter a phase of the case known as temporary orders.
Temporary orders allow you to learn how to adjust to life under a parenting plan wherein possession and visitation time with your child is shared between you and your child’s other parent. This is a great opportunity for you to help your child adjust to time away from the other parent, develop co-parenting skills and get your family ready for life on a permanent basis living under a court order.
What I also like to tell clients about these temporary orders is that they tend to resemble a great deal what the final orders in your case ultimately come out to be. Meaning: what you negotiate for in temporary orders is what you will ultimately be living under on a full-time basis after your case has concluded. Determining child custody for your little one is an important facet of the case as well.
Since the world of COVID-19 is different than we have ever had to experience (or will hopefully ever have to experience again), you need to be more mindful of the challenges that this virus represents for families in Texas. Being separated from your spouse means that you should keep the following items in mind when you are trying to negotiate for temporary orders.
Be assertive when setting up parenting time for yourself under temporary orders
In normal times, we base our possession schedules in family law cases around the school calendar. With schools closed for the spring semester 2020 the normal guideposts that we rely upon for dictating drop offs, pick-ups and school holidays have been taken away from us. That doesn’t change the parenting time that you would have, however. The school calendar would still be in control of dictating when you will be able to possess your child.
However, that would likely need to change if you, the other parent or your child were to become ill. If you were to become ill, it may be the case that you have to negotiate at least a temporary possession order where your spouse would be able to be in possession of your child for an extended period while you get well. This doesn’t mean that you don’t want to spend time with your child. It means that you are looking out for the best interests of your child in wanting him or her to stay healthy in these uncertain times.
What can you do if you have already negotiated temporary orders with your spouse?
You may have been fortunate enough to have negotiated temporary orders in your case in February or March 2020, immediately before the closures have occurred due to the coronavirus. What I would recommend that you do at this juncture is to go back and review the language in that order to make sure that you are absolutely sure what the order calls for as far as your responsibilities and your spouse’s responsibilities. The last thing you want to do is get bent out of shape about something that your order does not actually state.
What I would be particularly interested in is whether or not your order contains any provisions about possession, visitation and/or custody in an emergency situation. I’m not saying there will be a “coronavirus” provision in your family orders, but there may be something in there that states what should happen if one parent were to get sick or be unable to execute their responsibilities under the parenting plan.
If your order does not already have this sort of emergency section contained in the order, you may want to use this time period to negotiate for one on an even more temporary basis. If you choose to do so, you should be careful to make sure that it is clear from the language in the order that the emergency provisions apply only to limited circumstances and no other. You do not want to put yourself in a position where your spouse is able to use these provisions against you in the future.
To make sure that you are protected, you should include specific dates for your “emergency orders” section of the parenting plan. A date certain for the emergency orders to go into effect and then another date certain for the orders to expire. You can select the date that school is set to resume for the fall semester, the date that governor Abbott ends the state of emergency for Texas or when you are set to return to work.
What many parents already have included within their court orders are provisions that allow for parenting time to be done over the phone or computer. Digital parenting- via Skype, Zoom, FaceTime or another technological marvel could be utilized to bridge the gap for the time being. Nobody is going to try and make an argument that these methods of visitation could take the place of actually being with your child, but they may represent the next best thing for you and your family during this time.
Keep in mind that the odds are good that you and your spouse will need to agree upon any emergency orders at this time in order to get them included in your temporary orders. Unless a matter that you are discussing involves an emergency it is unlikely that a judge would be willing to hear your matter right now given the nature of the court closures and the need to hear cases that involve emergency circumstances.
What you can do if you are in the stage before temporary orders are already set
Let’s assume that you do not have temporary orders in place yet for your child custody or divorce case. You may have just filed your divorce and were in process of setting up mediation when the coronavirus closures occurred and life turned upside down for all of us. If you find yourself in that position then you essentially have a clean slate to negotiate from. Until the past few weeks it’s unlikely that you have been physically at the workplace so you’ve probably had some time to think about your case and what you would like to see happen with temporary orders.
In the event that you and your spouse are no longer living together your child is probably already adjusting to living life in two homes- primarily with one parent and on the weekends and other days with the other parent. The lack of a school calendar may mean that you and your spouse are allowing your child to have longer, extended stays with both parents if that is what you want.
Instead of thinking about what you could have done to create a parenting plan for you and your family had the coronavirus not occurred, what you should do is think ahead and plan out temporary orders that can positively impact your family for the remaining months of your divorce. For instance, I would assume that the school year will start on time, finish on time and take into account “normal” breaks and holidays at this stage. You should build your temporary orders accordingly.
Now that we are entering summertime, you should plan out how you want the next few months of your lives to go as far as a possession division. I don’t know how quickly your divorce would realistically be able to come to a close. As a result, I wouldn’t just glide over the summertime details and assume that you can pack a more detailed plan into your final decree of divorce. Rather, think hard about how you all want to divide up possession for the summer and make a plan that is realistic considering the limitations that the coronavirus will present.
What do most parents do in your situation? I think most parents agree on the parent with whom the child does not live with full time (also known as the non custodial parent) would be able to have extended time with your child during the summer. This makes even more sense if that parent lives across the state or even further. Travel has not been easy the last two months but should become more manageable during the summer and early fall.
Christmas, Thanksgiving and even into Spring Break 2021 are likely to be rotating holidays. That means you would have one set of these holidays this year (Thanksgiving, first half of Christmas or second half of Christmas or the entire Spring Break), and your spouse would get that same set in 2021. You would alternate throughout the years with one having “odd years” and the other parent taking “even years.” Your specific circumstances may call for something different that suits your family better, however.
Head to mediation in the event that an agreement cannot be reached on a parenting plan
Fortunately, if you and your spouse are not able to negotiate temporary orders between yourselves and your attorneys, you have the option to negotiate with an experienced mediator. Many mediators are holding online mediations over Zoom or other meeting applications. You and your attorney can each be in your respective residences and can work together ahead of time to create a parenting plan that will suit you all for the next few months. Your spouse and their attorney could do the same.
Sometimes in order to break a stalemate, it is necessary to bring in an outside voice. That fresh voice and perspective may be just what you all needed to get to a settlement. Don’t become discouraged just because you all have not been able to settle your case thus far. There are many good mediators out there who can lend their thoughts into your situation and can ultimately help you all a great deal.
Closing thoughts on handling summertime possession and temporary orders during COVID-19
We shouldn’t become discouraged about our circumstances just because things look bleak right now. Nobody knows how long this pandemic will last. Nobody knows what is the exact best plan of action to take. All we can do is make decisions that we believe are in the best interests of our families and ourselves. Remember that you have made it this far as a parent by relying on your own common sense and your own experiences. Combine that with the recommendations from public health officials and you should be well equipped to proceed with your family law case during the age of COVID-19.
If you have read today’s blog post and have any questions please contact the Law Office of Bryan Fagan today. Our licensed family law attorneys offer free of charge consultations six days a week here in our office. These consultations are free of charge and are a great opportunity to learn more about your case, Texas family law and the services we provide to our clients. We appreciate your willingness to spend some time with us here on our blog and we hope to see you again tomorrow.