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What can Texas parents do regarding the exchange of children under a Texas standard possession order during the COVID-19 pandemic?

With schools across our state closing their doors until the fall (at least), many parents in our area have had questions regarding how to proceed with the pick-up/drop off schedules that are contained within your family court orders. Should you continue to operate as if school were in. session? What about summer vacation? Do the same rules apply or are the courts creating different laws due to the pandemic we are facing?

In today’s blog post from the Law Office of Bryan Fagan we will discuss what you can do in order to better facilitate visitation and possession exchanges of your child between you and their other parent. It goes without saying that your individual circumstances may create a situation where you will need to deviate from your court orders- such as if either parent is ill. We will also detail steps on how to best proceed in circumstances such as that.

What does a shared custody agreement mean for parents in the era of the coronavirus?

If you are like most Texas parents who have a court supplied possession order regarding their children, then you share time with your child with his or her other parent. Some variation on the standard possession order is likely utilized wherein your child spends a considerable amount of time at your home and that of the other parent. This format typically works very well for families when times are normal.

I don’t think anyone would call what has happened the past few months to be normal. School and work schedules have been disrupted and in the case of our of schools have been eliminated for the foreseeable future. Parents use the school calendar as a guide to determine visitation and possession periods. When that calendar is moot because the schools are all closed you and your family may feel like sailors on the high seas with no compass to guide you towards the nearest port.

The real question that I think most people in this situation are trying to answer is whether or not you would be able to keep your child with you for an indefinite period during this pandemic. For instance, as long as various travel restrictions and stay at home orders are in place or at the very least encouraged, can you keep your child at home and not have to honor the visitation/possession exchanges orders from your court documents?

While this may be an idea that many of you may have, the reality is that the Texas Supreme Court has issued a ruling that no matter what sort of stay at home orders are in place (or are encouraged by local government) which states your possession order trumps a stay at home recommendation. If your ex-spouse has kept your child at their residence since Spring Break in March, he or she is violating your court order.

What the Supreme Court has said regarding this issue is that the school schedule for your child’s school as it was originally published at the beginning of the school year would also determine when your child would need to be returned to you. Possession of your child should not change due to the closure of schools, in other words. Whether or not this is what you expected (or what you wanted to be the case), possession exchanges need to occur absent extreme circumstances.

What to do if you don’t think it’s safe for your child to be at their other parent’s home during the pandemic?

I think this is a situation where you need to stop for a moment and consider whether or not you have a specific reason for having a concern for their health and safety. Going down the road towards a modification of your possession orders means that you must have a substantial change in circumstances that you can detail to the court. Going to see the judge with a mere thought that maybe your ex-spouse isn’t washing his hands enough will probably not grant you a victory in court.

However, if you do have a material and substantial change in circumstances that you can detail to the court then you can file a modification lawsuit with the court and see how quickly you can get the case in front of a judge. The number one point that you have to make, however, is that the modification that is proposed is in the best interests of your child. Telling a judge that it is not in your child’s best interests to see their other parent is a heavy burden to carry, however.

The reason why this burden is so heavy is that it is presumed that it is in the best interest of your child to have contact with both parents. To tell a judge that your child needs to stop seeing their other parent for any reason is a significant request to make. The threat of him or her getting the virus is significant and could be a reason why a modification may be granted. Minimal restrictions to visitation will be attempted first- completely denying your ex-spouse visitation for a period of time will be an absolute last resort in the eyes of the court.

If you plan on filing a petition to modify the possession orders then you will likely need to include an affidavit which details the circumstances as to why the modification is necessary and in their best interests. Emergency temporary orders can be issued by a judge after a hearing (which would likely occur over the internet) is the need for an immediate stoppage of visitation is found to be in place.

Before this happens, you should consider not withholding visitation even if you believe the situation merits it. The reason is that you can be found to be in contempt of the court orders and may face fines or other punishments from the court for having done so. Yes, this puts you in a position where you are having to choose between violating the order and potentially putting your child’s health in jeopardy (at least in your opinion), but these are the circumstances that we are living in these days.

What happens if the shoe is on the other foot and your ex-spouse is withholding your child from you?

It is not enough for your ex-spouse to threaten to withhold your children from you during a time that you would normally be in possession of them based on your court order. The first thing that you need to do is to make an attempt to pick up your child at the named location in your court order and then be denied possession of your child. Assuming that your possession time will be denied via an email is insufficient. You need to drive to your ex-spouse’s house (for example), wait for the time to come for your child to come out to your car and then be denied possession.

Once you have followed the exact terms as laid out in your possession order and have been denied the ability to see your child, then you can file what is called a motion for enforcement. A contempt finding is ultimately what you are seeking in a motion for enforcement. A party is in contempt of court whenever he or she violates a direct order of that court. So, if your ex-spouse denied you possession of your child then this would be the first step that you need to take in order to hold her accountable and win some make up visitation time.

Before you file your lawsuit it would be a good idea to review the terms of your court order so that you are very sure what they require as far as pick up and drop off of your child. Keeping accurate records of your attempts to see your child is the next step in the process that I would recommend anyone undertake who is in this position. It is insufficient to merely tell a judge in your petition that violations of the order have occurred in a general sense. Rather, you have to be very specific as to the date, time, location and nature of the violation (citing the pertinent order from your court order).

Asking the court for you to be made whole when it comes to make up visitation

Ultimately, your concern lies with getting time with your child that you were denied wrongfully by the other parent. Don’t get me wrong- winning that contempt finding from the judge against your ex-spouse is a nice add-on, considering that you could win attorney’s fees from him or her. The best prize that you can win for your efforts is the ability to spend more time with your child.

If your case is assigned for a hearing what happens if the local courthouse is closed?

Now that counties in our area are slowly opening themselves up for business you will need to check ahead of time to verify if your court is open or not. Many courts are not and are holding hearings over the computer on emergency matters that cannot be postponed to a later date. Or, your court may be willing and able to hold your hearing in person if it deems your matter to be one that is essential.

Nobody knows a certain date that all courts will be open by for hearings regarding all types of cases. That degree of specificity is one that seems to be changing frequently. All you can do is be aware of what your district clerk is saying on their website as far as the availability of opening up their courtrooms.

What if your problem is one that involves being at home with a spouse or partner who is abusive?

Let’s take a moment to discuss a topic that is unpleasant but is unfortunately a reality for some of you reading this blog post. One of the unintended side effects of these quarantine orders is that some people live at home with a person who is abusive. Without a place to literally escape to, your life may be spent living in fear if you are one of these folks. I wanted to reassure you that it is possible for you to have a plan in place even during these uncertain times.

First of all, calling 911 in an emergency is always the first step to take. Do not call your attorney, your friends, etc. before calling 911. By calling 911 you can involve the authorities who can help you in whatever jam you find yourself in. Before getting into a situation that you cannot remove yourself from it would make sense to have a plan in place on what you would do in the event that violence occurs in your home.

Family members, friends and neighbors should be made aware of their role in your plan. Do not cause surprise upon these folks when you call or run to them out of the blue for assistance. Help them prepare to help you. Again, hopefully the lockdowns and closures of our state end very soon so that we can be able to move about more freely. However, in the event that we move slowly it would make a ton of sense to have a plan in place to protect yourself and your children.

Questions about family law issues during the pandemic? Contact the Law Office of Bryan Fagan

If you have any questions about the material that we covered in today’s blog post please contact the Law Office of Bryan Fagan. We offer free of charge consultations six days a week by phone and video. Our aim is to provide information to our community despite the troubling times that we are all living in. It is important to keep in mind that we all need each other more than ever right now. Our law office seeks to be a force for good and we hope that you will join us again on our blog tomorrow.

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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, KingwoodTomballThe Woodlands, the FM 1960 area, or surrounding areas, including Harris CountyMontgomery CountyLiberty County, Chambers CountyGalveston CountyBrazoria CountyFort Bend County and Waller County.

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