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Should my Custody Order be Temporarily Adjusted During the Coronavirus Pandemic?

The question of to what extent a child custody order needs to be adjusted during the coronavirus pandemic is one that our attorneys have been asked about frequently over the course of the last four months period to be sure, there have needed to have been more adjustments made in regard to parenting time with your kids during the tail end of this past school year and this summer than in years past. What we have observed is parents who were forced to come up with changes to custody orders on the fly at least in terms of that I'm aspects associated with parenting. 

A custody order typically refers to topics that are more closely associated with visitation and parenting. Custody is a term that actually is not used within the Texas family code but is a familiar one for family law attorneys and clients. As best as I can describe it, custody seems like it is generally thought of as a catchall term for possession, visitation, access, and similar topics within the world of Texas family law. These are all important subjects to be sure, but I believe that the ability to make decisions on behalf of your children Is just as crucial. 

One beginning of family law case most parents are understandably concerned most with being able to be with their children as much as possible. People are told horror stories by friends and family about how their divorce took a turn for the worse when the judge awarded an ex-spouse more time with the kids than they were able to receive. Hearing stories like this tends to give folks a misguided idea about how time in custody rights are divided in divorce. I want to make clear that for the most part child custody and divorce cases are settled in mediation and rather than determined in a court room. 

It is the experience of most people who have gone through a family court case that their custody order was probably the most hotly contested issue within the case. The reason for this is that custody orders touch on So many different areas of your life and that of your children. As a result, parents are keenly aware of how important it is to get it right the first time and negotiate for the most advantageous order is possible. There is no guarantee that you will be able to come back and modify this order in the future, so you had better put forth the effort to negotiate as strongly as possible now. 

With all of that being said, we can turn our attention to custody orders during this pandemic. The troublesome part about this whole process has been that we do not know exactly where it is going to end. It is hard to plan for a future whose arrival his uncertain. What we do know about custody during the pandemic or any other time is that your orders need to be clear as far as what your expectations are in what your co-parent’s expectations are. However, you need to be able to balance that clarity with the ability to create flexibility during uncertain times. 

What all does custody encompass in a Texas family law order? 

And this is the subject that I think we need to talk about first and foremost before we can get into the subject of whether or not it is appropriate to adjust your custody orders due to the pandemic. Child custody means that you have a responsibility regarding the decision-making for your child as well as the duty to provide certain things on a basic level for your child. The standard rights in relation to decision-making over children relate to medical, education and psychiatric areas of their life. This means that you and your co-parent will hold rights in relation to making medical decisions on behalf of your minor children and making educational decisions that relate to their schooling. 

How these rights are divided up between you and your Co parent will be up to the two of you. There is no set way for parents to share rights and responsibilities in relation to their children. However, many parents choose to allow for each of them to make certain decisions independent of the other parent while other decisions need to be made in conjunction with that parent. In the event of a tie where you and your Co parent cannot agree on a certain aspect of parenting your child then you would be able to defer to a tiebreaker person in the life of your child. Many times, this is a pediatrician for medical decisions or a guidance counselor in relation to educational decisions. These are steps that you should think through while you are negotiating any family court orders in custody matters. 

It would seem that these type of responsibilities are especially important right now given this pandemic. We do not know exactly when the new school year will start or how much of it will be held remotely via a computer. The school districts may offer parents some degree of autonomy over determining how much their child should be in school physically and how much their child should be attending school virtually. You will be able to make decisions on behalf of your child in regard to education along with your Co parent. Be aware that the decisions you make any in regard to your child education are especially important and you should not shy away from holding firm on your positions regarding the decision-making ability of you and your Co parent. 

In relation to medical decisions, it is typical that in emergency type situations you will be able to make decisions on behalf of your child independent of your Co parent. The reason for this is the back that it would be impractical for you to have to wait to get ahold of your Co parent before making decisions in regard to emergency medical situations. A lot of times the decision has to be made very quickly and you would not have the ability to reasonably contact your Co parent and wait for a response about how to proceed. 

In other circumstances, such as with elective surgeries or procedures, you would be able to reach out to your Co parent and to be able to gain knowledge of how he or she feels about that particular procedure. These rights in relation to medical decisions are often held in combination Or in conjunction with the other parents if you all cannot agree on whether or not to move forward the surgery for instance then a pediatrician or other doctor could be listed in your family court orders to make that decision and break the tie between you and your co-parent.   

Possession, visitation and access issues surrounding child custody 

I think the most reasonable area to expect that your custody orders will need to be adjusted due to this pandemic is in relation to possession, Visitation and axis of your child. The thing that we all need to keep in mind at this point is that the health and well-being of your child could potentially be at risk due to this virus. As such, it is essential that you and your co-parent be willing to work together to create a structure for your child this summer and into the fall that allows him or her to maintain their safety. This is true during any time but is especially true during this pandemic.

Let's layout a worst-case scenario and assume that you, your child or your Co parent were to get sick. Given the widespread nature of the virus it is possible that this could impact your family. In that case you should look to your summer visitation schedule to determine the next steps that you take in regard to modifications or adjustments that need to be made. Given the time period that we're all in right now as far as it being the summer you may not need to make any significant changes at all.

For example, If you are to be in possession of your child until the end of July then it is possible that if he or she were to be sick right now that no changes in your child custody orders. The reason for this is that your child may be scheduled to stay with you through the end of the month giving you a week and a half for your child conditioned to get better. No adjustment to the parenting schedule would be needed as a result. 

However, if you have a possession schedule that is different than This then you may need to adjust your parenting schedule in order to accommodate whichever person is ill. It would not make sense to shuttle your child in between houses while he or she is sick. Yes, if you are the parent who is losing time right now with your child due to an illness then I can completely see are you would be frustrated by this. However, you can always schedule make up time with your child when you or your child's condition improves. 

You do not have to follow your family court orders word-for-word at all times 

I will closeout today's blog post by telling you that there is no requirement that you follow your family court orders at all times no matter the circumstances. Yes, these are family court orders in the document- they are not suggestions. Under just about any circumstance I would tell you to follow the court orders and not do whatever you want without consulting your co-parent. Behaving like this under most circumstances could lead to an enforcement case where you end up back in family law court addressing alleged violations of the family court order. 

However, under some circumstances you should be willing to adjust your orders and be flexible in terms of parenting time with your child. The unprecedented nature of this pandemic should lead you and your co-parent to be more communicative with each other and more willing to bend in certain areas if it is in the best interests of your child. The judge does not expect you to follow the terms of your court order if it puts someone's well-being at risk.

I will note that the risk to someone's well-being needs to be an actual, objective risk rather than just a general feeling of unease. For example, if you are asking your co-parent to temporarily modify your child custody orders because you have a fear that your child will get sick if he or she leaves your side then that is not a reason necessarily to adjust anything. There needs to be some basis in reality to adjust a court order. If you have that reasonable basis and you and your co-parent are able to communicate about what changes need to be made, then you should go ahead and do so. 

Any changes or adjustments should be written down in agreed to in advance by both you and your co-parent. Do not rely on your memory or on a general understanding that you both are OK with the adjustments. To be unclear is to be unkind. This means that you all should be crystal clear on what the expectations are for returning back to the terms of your child custody order once the pandemic related circumstance has lifted. If you can manage to take into account, all of these pieces of advice and communicate them with your Co parent you will be well off in terms of your child custody circumstances. 

Questions about the material contained in today's blog post? 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 consultation six days a week where we are able to speak with you about your case in the services that our law firm provides to clients. These consultations can be held in person, over the phone or via video. 


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