In Texas,
most possession schedules are organized around the school schedule of the
child. Spring break, teacher work days
and other periods of changes of possession are often incorporated into the custody
orders for children. The order to either
surrender or return on certain dates is determined by the school schedule of the
child. In most cases this means the published
calendar of the school district in which the child is enrolled. But with schools shut down for the Coronavirus
Crisis for weeks and possibly months, how does that affect the possession times
for the children?
The first step
to answering this question is to look is the existing possession order you have. The language of the order should be reviewed
carefully to understand what it was intended to do in normal times. Second, you need to see if there are any special
clauses in the order that may cover special circumstances such as when the child
needs to stay home because they are sick.
Assuming
there are no special provisions covering emergency situations and the order is
basically aligned with the Standard Possession Order, the general rule is that possession
times, exchanges, and the surrender and return dates and times should continue
to follow the school district calendar AS IF the child was still in school and
the normal calendar was being followed.
There are
two rationales for this. Firstly, following
the calendar AS IF the child was enrolled this is the standard practice that is
followed for children who have not yet attained school age. Standard possession times for children over 3
but who are not yet in school uniformly follow the dates and times of the school
and district calendar for AS IF the child was attending school. This gives certainty to order and avoids
confusion.
Secondly,
the courts in recent days have issued strongly worded standing orders to all
attorneys and their clients that parents who had their children over the spring
break must immediately return the children as if school had resumed on
the normal day (March 16). This is a
very clear signal that the Court will insist that custody orders must continue
to follow the language of the order and follow the published district and
school calendars for the purposes of exchange even if the children are not actually
following that schedule because of emergency changes related to the COVID-19
outbreak.
In fact the
Galveston County family courts standing order issued on March 16, 2020 was
particularly blunt when it declared:
“If your family
has a COURT ORDER that provides spring break possession for the non-custodial
parent, that non-custodial parent must return the children AS IF school resumed
on Monday, March 16, 2020. For Parents
who have NOT returned the children by Monday, March 16, 2020: YOU MUST RETURN
THE CHILDREN IMMEDIATELY OR YOU WILL BE FOUND IN CONTEMPT OF COURT AND WILL BE
FINED AND SANCTIONED.”
So it is clear
that if parties want to avoid trouble with the courts, they need to stick with the
schedule AS IF school was going on normally.
However, parties
may want to come up with a stop-gap agreement to address changes for the best
interest of the child. This is allowed
as long as the parties agree. Also it is
still unclear how things will be handled if the school shut down continues into
the summer possession time.
If you are
stumped on what this schedule would look like or if you want to negotiate a new
schedule with the other parent, this is were an attorney or even mediator can
step in to help you. In the end, parents
must keep a cool head and either stick with the order they have or negotiate
what is in the best interest of your children and makes most sense for
everyone.
If you have
any questions about how recent events may affect your custody order, please contact
us at The Palmer Law Firm. We practice in
Harris and Galveston counties, Texas. With
our mediation experience we can help parties come to agreements that work. With our litigation experience we can help
you fight for the best options for your child.
We encourage you to schedule a free call with one of our family lawyers. We have leveraged technology with our online
client portal, electronic forms and e-signature document capacities to minimize
your need to make trips from your home to advance your legal issue. We also offer on-line virtual mediation
session to help you come to an agreement, even when apart. You can book your free Virtual Meeting by visiting our website at www.thepalmerlawfirm.com or calling us at 832-819-3529.
