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Summer Break, COVID-19 and possession of children in Texas

Summer Vacation plans have changed for many families in our area as a result of the COVID-19 pandemic. Even if initial projections dramatically overestimated the impact of this virus on country and state, the fact is the State of Texas has closed many “non-essential” businesses as of March 2020 and is only slowly opening them back up as we close out the month of May. As we see life return to some semblance of normalcy over the coming weeks and months, it is important to take note of how these changes will impact our families. This is true especially for those families who exchange possession under a family court order. 

Instead of planning beach trips and other forays away from the big city, I anticipate that many families will be spending more time at home this summer. “Staycations” as they are known will be the norm for families at least at the beginning of summer it seems. One of the nice things about being able to go out and do things with family away from the house is that you can have physical, emotional and relational distance from one another. That distance is important when you consider that we and our families have been physically on top of each other for months. 

The courts in Harris County and throughout the state of Texas have utilized technology to try and make the best of these circumstances. For instance, the popular internet based meeting application, Zoom, with great success. Obviously the court will make sure that people’s privacy is maintained during these proceedings and only limited persons will be able to participate (the attorneys, the judge and the clients, foremost among them). 

Even though we are and will be spending more time at home, it is important that we maintain relationships with our family and friends that we will not have an opportunity to spend time with due to travel restrictions. Even though the trip to grandma and grandpa’s house had to be cancelled that doesn’t mean that our children can’t benefit from phone calls and care packages. Help your parents stay close to their grandparents by sending them photos and small gifts that remind them that these changes are only temporary. 

I would also recommend exercise with your family during the summer months. Yes, I am aware that Houston (and Texas in general) tends to get very hot in the summer. Regardless, you and your kids can wake up early and go for a walk or even do some yardwork together as a family. Swimming pools are opening up across our area and are a great opportunity for you to engage in fun, safe activities with your family. 

Do not use the pandemic as an excuse to get on the nerves of an ex-spouse

We are all being pushed to the edge of sanity during this pandemic. Our normal routines are being disrupted and there is less of an opportunity to “do our own thing.” I get it. However, as a way to de-stress I wouldn’t recommend giving your ex-spouse a hard time about whatever insignificant issue is bothering you. 

One issue that I have seen popping up with some frequency of late is parents withholding visitation with their child from the other parent due to concerns over cleanliness of the house or adherence to social distancing recommendations. This is a good opportunity for you to think about what you would do if you found out that a relative of your ex-spouse came down with coronavirus. Would you withhold possession of your child even if your ex-spouse hadn’t spent any time with that person?

Or, suppose that the ex-spouse spent a day or two with this person while he or she was asymptomatic but contagious nonetheless. Would you blame him or her for acting recklessly in potentially exposing your child to the virus? The fact is that children are unlikely to contract the virus in this way (so it would appear based on available data) and the overall transmission rate for situations like the one I laid out do not appear to be very high. Of course, work with your primary care doctor to gauge risk of infection, etc. Do not rely on me as your source of valid medical opinion (because I am not a doctor). The point holds: do not let your fear of this virus overcome you and cause you to lash out at people with whom you should be working with, not against.  

What can you do if you have real concerns about the health of your child?

It may happen that you have legitimate concerns about the safety and well-being of your child when he or she is with their other parent. In situations where you have concerns that are valid and demonstrated as being a risk to the health of your child you should reach out to the other parent. This may be difficult for you if you have not been in contact with that parent in some time. Breaking the conversational ice by coming at them and accusing him or her of being a bad parent is not the way to go. 

Instead you may want to reach out to the parent to first get a sense of how he or she is handling all the changes that we have seen occur in our area due to the government’s response to the pandemic. You can establish right off the bat that both of you are struggling in various ways to help your child and to structure life in a way that can still benefit your child. This way you will not be approaching the situation like someone who is judgmental or overly critical.

Once you have established the tone of the conversation and friendly/conversational, you would be in a better position to address the concerns that you have with the behavior that you have either witnessed or have been told about by your child. There may be a valid explanation for the behavior that you hadn’t considered. The behavior may have been misinterpreted by your child and further misinterpreted by you. I tell clients frequently that in a battle between malice and ignorance/negligence, it is usually ignorance/negligence that explains behavior. Most people do not do things in order to purposefully harm another. 

Finally, in the event that you are unable to speak to your child’s other parent about the concerning behavior you have the option to pursue a legal case against him or her, potentially. You may need to seek a temporary, emergency modification of the court orders in your case due to safety concerns. Or, if your ex-spouse is violating your court order you may need to seek an enforcement of that order. 

In either case, you should speak to an attorney about how to proceed. Not only it is difficult to file, prepare for and argue one of these cases in an open hearing before a judge but it is even trickier right now because of the closure of most of the courts in our area. Special rules are being enacted in the various counties in Texas as far as how to file and then proceed with a civil case. You should not venture out into the world of the law without assistance right now, if you can at all help it. 

Judges tend to allow parents leeway when conducting affairs in their house. Meaning- unless it is obvious to a judge that behavior has violated a court order or is putting your child’s well-being at risk he or she will not be overly excited to intercede into your matter. This means that you should be prepared to make compelling and strong arguments as to why judicial intervention is needed. A virus is no reason for a judge to act in a heavy-handed fashion, and I believe many judges will hesitate to overstep their bounds in this regard. 

What can you do if you are diagnosed with the coronavirus?

In the event that you are diagnosed with the coronavirus, you should contact your family doctor and proceed according to their recommendations. Any statements about the virus, your family or things along those lines that we make in this blog should not take the place of recommendations made by your personal physician. I don’t want to give you the impression that we are fit to give medical advice. Only your doctor can do that. 

Otherwise, I will tell you that I know doctors are treating patients over the computer or even over the phone right now. For instance, my wife had an appointment with her doctor over the phone recently that went quite well. For what it’s worth, I think many doctors will see this as an opportunity to treat more patients more efficiently, leaving them more time to treat the patients in office that require additional care. 

We are all familiar with what people have been doing that have contracted the virus that do not require hospitalization (most people, in other words). That would be- stay at home, isolate yourself from others as best you can and get well on your own schedule. You would be correct if that sounded like how we have been getting over all sorts of colds, viruses and other issues for as long as we can remember. 

For a family that is co-parenting a child in a shared custody situation, this offers you all a perfect opportunity to do exactly that. Work with your child’s other parent if he or she becomes ill and assure him or her that you will do what it takes to help their health improve while protecting your child as best you can from catching the virus. That may mean you keeping possession of your child for a couple extra weeks this summer while your ex-spouse can recover from the virus. Or, if you get sick that may mean your ex-spouse has the ability to care for your child a little extra here and there.

The bottom line is that you all need to identify what is in the best interests of your child and do what is best from there. If that means having to create a makeshift parenting plan for the summer of 2020 then so be it. Working out extended visitations, make up visitation times later in the summer or even a change of plans based on summer school (since many districts are opening back up for the summer session), then that would be what you need to do.

What about family violence during the summertime? Is there anything you can do?

While the courts are not open now and are not on any kind of definite schedule to resume operations, you can still address issues of family violence should they occur. Many courts are able to hold in person hearings for matters relating to violence, abuse or Child Protective Services (CPS). You should work with your attorney and the district clerk’s office for your county to gauge how open their dockets are at this time. 

Do not wait until something bad happens in order to create a plan for yourself and your family. Identify risks to your health and well-being, make plans, inform others about those plans and learn how the law can help you. Basically, if you are reading this blog you should continue doing what you have been doing. 

Questions about Family Law during the Coronavirus? Contact the Law Office of Bryan Fagan

If you have any questions about the information we have discussed 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 over the phone and via video conference. While our physical offices are still not open to the public we want you to know that we are working hard for our clients and their families despite these tough times. Thank you for choosing to spend part of your day with us here on our blog. 


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