There is a dynamic that exists in most every child custody case that is filed in Texas or any other state for that matter. The dynamic is this: one parent identifies a problem and then sets out to solve that problem to his or her advantage. The other parent may or may not see this coming. A child custody case is a lawsuit, whether or not it feels like one. The petitioning parent is suing the other parent in order to bring about the change that he or she wants to see occur. The other parent must then answer the petition and may offer a counter-lawsuit (counter-petition) wherein he or she seeks to have the court address their own list of grievances.
We can call something a child custody case all day and night but it is a lawsuit. If you are reading this blog post today then you may be interested in filing a lawsuit against your child’s other parent. Or, you may have been sued by that parent and are now seeking answers on how to respond to the suit. Either way, if you have questions then today I would like to share some information with you to help you arrive at an answer.
I think one of the toughest parts of this COVID-19 pandemic that we find ourselves involved in right now has been the collateral damage inflicted by the national, state and local shutdowns of travel, economic activity and social movement that we have all grown accustomed to. We do not typically think twice about leaving our house to go for a bite to eat, a trip to the grocery store or on a drive to the beach. These sort of casual forays into the world are something that many of us (myself included) probably took for granted.
Now that we are able to look back on the changes that our society has undergone in just a short few months, I think it is worth examining how people involved in family law cases right now could be going through especially difficult times as a result of the shutdowns that I discussed earlier in this blog post. How can you and your family avoid the mistakes and problems that can come with being involved in a child custody case during a pandemic?
Parents care about visitation more than any other issue in family law
If you have gone through a child custody or divorce case then you know there are a lot more issues involved in those processes than would typically meet the eye. What you may have assumed to be a relatively straightforward process of dividing up your child’s time between two parents can quickly turn into a contested matter where time, money, ego and pride all come to a head against one another. If you are not careful, the situation could turn into one where your child is lost in the shuffle of a “battle” between mom and dad.
While the ability to make decisions for your child (conservatorship), support your child (child support) and even support your ex-spouse (spousal maintenance) are all critical components to divorce and child custody cases, what most clients of the Law Office of Bryan Fagan tell me are their primary concerns heading into a contested family law matter are issues relating to time with their kids. Each parent that we speak to, almost universally, wants to have as much time with their kids as possible.
With the goal of having as much time to visit with your kids as you can possibly get, you can imagine how that can create some difficulty within the case itself. The reason for this difficulty is that your opposing party is the other parent to your child. Odds are good that he or she also wants the same thing that you do: greater time to visit with your child. Visitation is a much negotiated topic that will lead to a trial more often than just about any other subject.
Ultimately what happens in a child custody case is that parents will negotiate and haggle over a visitation and possession schedule for their children that will suit both parties as well as possible. Sometimes one parent will walk away from the case feeling like they got the better deal, and the other parent walks away from the case feeling the opposite. Other times both parents feel like they gave away a little too much. In my opinion, when both parents feel like they gave away too much that is when the case was probably decided fairly.
Either way, visitation during the most “normal” of times can be difficult to manage due to circumstances that arise in the course of events for families. A pandemic sweeping the world was not a circumstance that you or your family probably were prepared for. The question that you need to ask yourself now that this is a reality that we will have to tackle for at least the summer months is: how can you manage visitation time with your child while not alienating the other parent or being alienated yourself?
What is parental alienation?
The term parental alienation is not one that is used often in family law cases, but the concept is one that is pretty common. Parental alienation refers to a situation where a parent is pushed away (physically, emotionally or both) by a child due to the influence of the other parent.
What we see happen is a child spends time with one parent and that parent directly or indirectly influences the child to not want to visit and spend time with the other parent. For example, if your child is spending time with their other parent and that parent spends the entire weekend telling your child how bad of a person you are, how you don’t love your child as much as he does and that your child would be better off living with him, that is textbook parental alienation.
Alienation manifests itself through your child no longer wanting to spend time with you- not based on anything that you have done, but from being alienated by the other parent to feel a certain way about you. Visitation becomes like pulling teeth in terms of trying to get your child to come and see you. If the visitation period can occur, your child could distance him or herself from you during your periods of possession. The emotional component of parental alienation can be even worse.
So the question is: how can you avoid creating a situation where either you or your child’s other parent is prone exposing your child to alienating behavior? This is an especially important question given that your child may be spending more time with you or the other parent as the summer months approach and/or if someone in either family is ill, I think this question is especially relevant right now.
A word on contempt
Contempt refers to a finding by a court that you or another party to your case (the other parent) has violated an order issued by the court. In the context of a child custody case, that most frequently occurs in relation to visitation and possession orders. If you refuse to allow your child to see their other parent for no other reason than a general fear over your child getting sick, you are in violation of your child custody orders. Therefore, if the court is made aware of this violation you can be found in contempt.
A contempt finding carries with it a range of possible penalties. If you deny your child the opportunity to visit with their other parent then he or she could be awarded “make up” time that comes out of one or more of your periods of possession. You can be fined by the court for violating a court order and being found in contempt. Attorney’s fees may need to be paid to your child’s other parent. Finally, especially in relation to contempt findings associated with the failure to pay child support, jail time of up to six months can be handed down by a court.
There is a direct line between parental alienation, court order violation and contempt findings. One thing, it is said, leads to another. By your choosing to do what you want in relation to your child’s visitation time you then are effectively saying to a court that what you want trumps what the court has said you must do in relation to visitation. Moving forward, if your child’s other parent files an enforcement lawsuit, you will need to account for and defend your actions. If you are not successful in doing so you will be held in contempt of court by the judge.
The bottom line is that you want to avoid alienating the other parent of your child. Alienation leads to disruptions in visitation and disruptions in visitation can lead to enforcement lawsuits and contempt findings that go against you. Time, money and sanity are things that are in short supply right now during the COVID-19 pandemic. If you don’t think you have room to spare in regard to any of those commodities let’s go over a few pieces of advice on how to proceed with visitation in the summer months of this year.
Be fair to the other parent
We all have concerns of varying degrees regarding health right now. We want to keep ourselves and our families healthy. On a larger scale we want this virus to go away and never come back. How best to do that is what is being debated across the globe right now. What I can tell you in relation to family law cases and visitation is that you need to follow the court orders that were established in your case.
There is no temporary suspension of the orders allowing for a free for all due to COVID-19. The Supreme Court of Texas has issued a number of clarifying statements in regard to family law cases specifically which state that families should follow the school calendar of their area (even if school is not in session) and should proceed based on the possession schedule contained in their court orders.
If you choose to engage in alienating behavior towards the other parent you are not following the mandate of the Supreme Court, you are not following the advice your attorney gave you months ago and most importantly you are being unfair to your child. If you are attempting to keep your child from their other parent right now, whether you are physically or emotionally doing so, you are violating the court order.
There is likely language in the court order that prevents you from talking badly about the other parent in front of the child. There is certainly language that designates periods of possession for you and the other parent. Alienating behavior will impact both areas and cause you to violate your order many times over.
To avoid doing so, I suggest that you stay abreast of current events to a reasonable extent. However, use your own common sense when assessing risk. Do not allow yourself to be overly influenced by the opinions of others. Again, we do not know what direction this pandemic will go.
We cannot know for certain who will get sick, or if anyone in your family will. All we can do is make decisions based on the information at hand. The information at hand indicates that you and your family should make the best of these circumstances, stay safe and follow the court orders. If you do so, you will avoid visitation issues and contempt of court findings.
Questions about contempt, visitation and parental alienation? Contact the Law Office of Bryan Fagan
If you have any questions about the information contained 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 where we can answer your questions and assist you with learning more about the world of Texas family law. These consultations can occur over the phone or via video conference.