As the coronavirus continues to progress (hopefully) towards a conclusion, many people have questions about their family law related matters. Living under family court orders can be difficult enough as it is without pandemic swirling in the background. Now you and people just like you are struggling to figure out how the new rules of social distancing, job transitions, restrictions on travel (at least air travel) and the logistical problems that are associated with visitation and possession will interact with their parenting.
In today’s blog post from the Law Office of Bryan Fagan, we will discuss this topic with you all. I think it makes a lot of sense to go over many common scenarios in hopes that at least one of them relates to a situation that involves questions that you may have. If at the end of today’s blog post you still have questions then I would recommend that you contact the Law Office of Bryan Fagan. Our attorneys are standing by to assist you in a free of charge phone call or video conference.
What rules are in effect currently regarding possession and visitation of a child?
With the governor lifting stay at home orders, businesses opening back up and life getting more normal as the days go by, you need to know that your court orders are what will govern your possession and visitation exchanges with your ex-spouse. I would recommend that you re-read your current court orders as many times as it takes to learn what your responsibilities are and what those of your ex-spouse are. That way there won’t be as much of an opportunity for misunderstandings.
This means that if all else fails then you need to go by the court order. As always, I would tell you that if you and your ex-spouse can work out an agreement between yourselves that suits your family better right now then I would go in that direction. You all know your current circumstances much better than a court order from two, three or more years ago could have. Nobody could have predicted to the extent that our lives have been changed due to the coronavirus. It’s everyone’s hope that these changes are temporary but we have no way of knowing.
Even before the stay at home orders were lifted, you were still exchanging your child based on the court orders that you had. Local and state government orders to stay safe at home would not trump a family court’s order regarding possession, access or visitation.
Let’s say that your ex-spouse had your child over the Spring Break holiday but still hasn’t returned your child home yet. We are now going on two months since holiday and I hope that you would have reached out to an attorney in that time. Your ex-spouse needs to be aware that the school calendar still governs possession and visitation. Meaning that just because school has been cancelled for the remainder of this school year does not mean that periods of possession can be extended indefinitely.
What about modifying a court order during the pandemic?
A substantial change in circumstances for you, your child or your child’s other parent would need to be shown to the court in order to justify a modification. That is the standard at any time, including right now. Most importantly, you would need to argue that the modification that you are petitioning for is in the best interests of your child.
If you are petitioning for a temporary change from a court then the answer is likely to be no, regardless of whether or not something would be in the best interests of your child. The reason for this is that courts are not typically excited to change a court order on a temporary basis. Consistency and stability and important to a child and it is believed that having contact with both parents is essential to the raising of a child. So, an attempt to restrict time with either parent right now would be likely be met with a “no’ answer from a judge. If you can even get a hearing with him or her.
In the alternative, any restrictions that would be granted as far as a modification is concerned would be limited in scope. Your child’s best interest is a purposefully subjective standard that calls upon judges to use their experiences and the law as a guide to make decisions. If you wanted to ask the court to restrict your child’s ability to see their other parent because you have concerns over their ability to protect your child from getting sick then you would have a heavy burden to show why your concerns are justified.
At the most, any restriction granted to you would be a minimal change to the overall possession schedule. Courts will only consider extreme situations, typically, when restricting visitation for a parent. What would probably work best is, rather than attempting to go through a family court to get your temporary modification, to negotiate with the other parent on a visitation/possession schedule that works best for your family’s needs. If you want to limit contact with a parent who has been sick or is caring for a sick relative then you should attempt to reach out directly to him or her and see if there can be a solution that is reachable.
Emergency Temporary Orders if an agreement cannot be reached with an ex-spouse
You can file a petition with the court for emergency temporary orders if you believe that the health and well being of your child is in immediate jeopardy due to the coronavirus pandemic (or for any other reason). Your attorney will ask you to draft an affidavit that will be attached to the petition which details the reasons why you are requesting the modification. An affidavit is a sworn statement under oath. If the judge grants your petition then an emergency temporary order allowing you the relief that you are seeking.
Keep in mind that if your child is being wrongfully withheld from you by the other parent then you do not need to file a modification lawsuit. The correct pleading that you would need to file with the family court is an enforcement of your current possession/visitation orders. You would ask the court to hold your ex-spouse accountable for violating its orders. This is something different than a modification case where you are asking the court to institute new orders and to basically throw the old orders into the trash can.
What to do when you are being denied visitation time wrongfully?
You cannot file an enforcement suit before your visitation or possession opportunities have been denied. Simply anticipating that a denial will occur and then filing your enforcement suit before the denial occurs is not going to result in a successful outcome for you with the judge.
The first thing that a person would need to do in this situation is show up to the pick up/drop off location which is stated in your court order. Many times, for example, if it is a McDonald’s restaurant I would recommend that clients make a purchase at the restaurant just to get a receipt showing that you were at the pre-ordered location on time and ready to receive your child.
Once you have been denied your possession/visitation by your ex-spouse then it would be time to consider hiring an attorney to file your enforcement lawsuit. You do not have to hire a lawyer to file an enforcement lawsuit, keep in mind. However, given the complex nature of the case as well as how precise you need to be in drafting the document it would be a good idea to do so.
Many parents will request in their petition to have some additional time added onto their court ordered possession schedule in order to compensate them for the missed time. You may even be able to negotiate with your ex-spouse before going to see a judge and reach a solution without having to appear before the court.
Holding your ex-spouse accountable for their actions is another key purpose of the enforcement lawsuit. You would be asking the judge to hold your ex-spouse in contempt of court. A contempt finding is one in which a judge can determine that your ex-spouse violated a court order- either an order that was contained within the written possession order or another rule set forth by the court. Monetary fines or even jail time are possible punishments for contempt findings made against your ex-spouse.
What happens if your ex-spouse has only supervised visits with your child and the supervision center is not open?
It happens that on occasion a parent will have severely restricted visitation with their children due to safety concerns. In that event, supervised visitation centers step in and fulfill the role of hosting these supervised visits. As a result of the closings of businesses across our area, you may have run into a situation where your center is closed down and your ex-spouse’s visits cannot occur as normal.
What can you do in the meantime? Obviously you do not want your child’s safety to be put at risk. On the other hand, we have already established that following the court orders is what the powers that be (the Texas Supreme Court) are ordering to occur. Is there any middle ground to a situation like this?
As with any situation right now, if you and your ex-spouse can work out a temporary agreement that allows for visitation to occur that would be for the best. If a neutral location- friend, family member or even public park- can be selected as a place for possession and visitation to occur then you would be well served to do so. If you cannot agree, you run the risk of having your ex-spouse awarded make up time once the pandemic ends and the visitation center re-opens.
While this may not make you smile from ear to ear, it can do a couple of good things for you and your family. For one, it would allow your child’s schedule to stay somewhat intact. Think about all the changes that your child’s life has undergone in the past weeks. Removing visits with their other parent would only add to that list of changes. The other thing that it would do is limit the degree to which you have to work with your ex-spouse on modifications down the road. Take your medicine now rather than having to take your medicine later.
What about child support? Does that still need to be paid right now?
You can go grab your family court order and take a look to see if there is a coronavirus subsection to your child support orders. I can promise you that there is no section to be found. As a result, you will need to continue to pay child support as ordered or risk consequences for not having done so. If you are unable to pay child support right now a court order would be needed in order for you obligation to be waived- at least temporarily.
The first step that you can take if you lose your job or find yourself unable to pay child support for any other reason is to contact the Office of the Attorney General. You can have a review of your child support order requested. The downtime to going about your request this way (rather than hiring an attorney and filing a modification) is that it can take much longer to have the request granted.
More questions related to family law and coronavirus will be answered in blogs to come
Please head back to our blog this week as we continue to focus on the coronavirus and its impacts on your life. If you have questions about the material that we discussed today 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 phone or video conference. Our goals are to help keep our community safe while providing legal services that are needed by our clients.