The question of whether or not it is possible to get back parenting time that you lost during the COVID-19 pandemic is one that we have been hearing a lot of at our office. Due to these unknown predictable circumstances surrounding the virus and our government's response to it is possible that you may not be able to exercise all of your possession during the prearranged time periods. As a result, you may be interested and learning whether or not you will have an opportunity to make up that time at a later date. I can tell you that it is possible and for most families there is no problem with getting these arrangements modified temporarily.
Changes in your work schedule or illness being suffered by you or your children may lead to the need to alter schedules as far as possession and Visitation with your children is concerned. You have heard many times on this blog how a family court order provides you with guidelines for possession and Visitation with your children. While these are court orders and you are ordered to follow them there is no doubt that if circumstances change it is preferable for you and your Co parent to work together 2 eliminate issues that could compromise the health, safety or well-being of you or your children. I would say a viral pandemic qualifies as a circumstance that may necessitate a temporary change in visitation alignments.
In an ideal world, make up parenting time loss due to the virus or any circumstance related to the virus would go like this. Suppose, that you received a phone call from your Co parent who told you that your child has unfortunately tested positive for COVID-19. Fortunately, he is resting comfortably at home and has no symptoms and is on a medication regimen that the pediatrician believes should lead him towards good health in a short matter of time. While you are most concerned with the health and well-being of your child, it is understandable if you also have concerns about not being able to see him for an extended period of time. What can you do to help ensure you don't lose parenting time over the long run?
What an experienced family law attorney would do is to counsel you to work with your Co parent on creating a temporary schedule once your child is healthy that would allow you to make up any time that you have lost. This could mean that for the rest of summer you divide up the days that you have missed over an extended period of time thereby helping you regain the time that you have lost but not completely altering your child's pre thought out schedule. While your child is sick you can also utilize technology to be able to see with and interact with your child. I'm sure you will want to check on your child and make sure that he is recovering like the doctor thinks that he will.
This is making the best of a bad situation. You will be able to engage with your child on some level while he is recuperating while also ensuring that you have an opportunity to make up any loss parenting time down the road. While you would like to be able to exercise your possession as scheduled in your order circumstances beyond your control have intervened and caused a disruption to those plans. As long as your child is healthy that is the main thing. You would tell yourself that any makeup parenting time is simply icing on the cake.
What happens if you lose parenting time in the event that you get COVID-19?
Now let's put the shoe on the other foot. Suppose that instead of your child being the person to get sick you are the person to get sick. Initially you were feeling rundown during the beginning of the week but then over the course of a few days your symptoms worsened, and you went to a local urgent care facility to get tested for the virus. Sure enough, when the results came back the following day you tested positive for COVID-19. He made an appointment with your primary care doctor and received treatment for the virus. As far as you understand, given that you are a person with no pre-existing conditions, it is expected that you should get better in around 10 days.
During this 10 day., however, you had plan for your child to be with you for Seven of those 10 days. That week you all were going to hang out around the house, go swim in the pool and engage in any outdoor activities that would allow for some fun in the summer while minimizing exposure to the virus. Your contract in the virus put an end to those plans and now you need to determine what comes next as far as any make up time with your child.
You child stayed with her mother during that Seven day. While you were getting better period, you communicated with her using social media and over the phone every day. She even came by with her mom and dropped off some homemade soup and made a card for you wishing for you to get better as soon as possible so that you would be able to see one another again. This made your recovery that much easier and helped you to keep your spirits up.
Now let's get down to the nitty gritty. In the event that you were sick and unable to care for your child in a safe manner it was essential that you took the precautions that she did to ensure that your child would not get sick. It would have been inappropriate to have your child come over and spend time with you during that week that you were ill and getting better. Due to your child temporarily staying with her mother for that period of Seven days you lost. Seven days’ worth of possession of her child that you were entitled to under your final decree of divorce. Now that you are better and able to care for your child it will be up to you and your ex-spouse to come together and create an agreement that allows you to make up the time with her.
In the event that you agree to temporary parenting time changes then you should put that agreement into writing. It just makes a lot of sense for you to be able to take your agreement put it down in writing so that no one forgets the finer points of the agreement and no one becomes confused at the nature of which you have agreed upon. Any lawyer will tell you if he didn't get it in writing it didn't happen. Don't put yourself in the position where you put yourself at risk of losing more time with your child for no good reason.
In my opinion, a person in the scenario that I described above would not necessarily need to go to family court or even seek formal mediation in regard to these kind of temporary changes. The fact is whether it's COVID-19 or any other problem that comes up in your lives it is important for you and your Co parent to be able to work together to carve out agreements on the fly using your problem solving skills and understanding that both of you want what is best for your child. Involving the courts, especially when many of the family courts in Southeast Texas are not even open, is unnecessary and may only add to the stress is that your family is already undergoing at this time.
If you all do choose to seek mediation and have temporary orders entered in your case, you may do so. I would think something fast and easy with an experienced mediator could help you all create a temporary agreement that suits you until the make-up time is awarded in full. On the other hand, if you are seeking a permanent modification to your court order it would need to be a more prolonged process. You or your Co parent would need to file a petition to modify your divorce decree and would need to specify this significant and substantial change in circumstances that have a curd that necessitate a modification of the court order.
A judge from the family court would need to determine if a material in substantial change in your circumstances has occurred. It would seem to me that a short bout with COVID-19 would not suffice as a material and substantial change period the fact is that the visitation time can be made up with relative ease and no permanent change to the parenting plan would need to be implemented. With that said, if there are other issues that necessitate a modification to the court order you should speak to a family law attorney with some experience handling modifications before you proceed any further.
The bottom line is that you and your co-parent should work together as far as possible, whether or not it involves the family courts, to ensure that any change that is made is in the best interests of your children. That change can be temporary or permanent but needs to take into account the needs of your children specifically. Nobody knows your family circumstances better than you and your co-parent. Unless there is a circumstance that arises, which is completely beyond your abilities in negotiate through, I would not recommend utilizing the courts to solve your problem right now.
That is different than saying that there may not be a need to file a lawsuit, however. Keep in mind that just because a family lawsuit is filed does not mean that you are guaranteeing yourselves the need to go and see a judge. On the contrary, even post-divorce lawsuits have a great degree of success settling in mediation before a trial or even a contested hearing is necessary. Sometimes the filing of a lawsuit in a post-divorce family's life is just the means to getting the family to the negotiation table. The word lawsuit has a lot of connotations that are negative but does not necessarily mean that a trip to the courthouse is inevitable.
What about supervised parenting during COVID-19?
If you are a parent who has possession time with your child carved out where you engage in visitation with your children by the assistance of a supervised visitation facility, then you should pay attention to this section of today's blog post. In the event that you have supervised Visitation with your child then you will probably already have figured out that any in person services provided by these groups have probably been suspended at this point due to the virus.
However, before you stop attending these in person Visitation sessions through a supervised Visitation facility who should contact the facility or agency that is administering these visits and speak to them about what options are available to you right now. It may be that some services are still being offered despite the pandemic.
On the other hand, if you have parenting time with your children that is supervised by a family member or a friend if that person is still able and willing to supervise you should probably assume that your Visitation sessions will continue as planned in your court order. As we have talked about earlier, if you lose time with your child you should plan on keeping track of the hours that you have lost and should work on scheduling make up time with the agency or family member once the pandemic comes to an end.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we covered 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 in person, over the phone and via video six days a week. Our attorneys take a great deal of pride in serving our community and we look forward to discussing with you how our office can best serve you and your family.