If School Is Closed For Weeks or Months Due to the Coronavirus (COVID-19) Crisis, How Does That Affect My Custody Schedule?

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.

Child Custody and The COVID-19 Coronavirus Crisis

We are all in a very stressful and fearful time with the outbreak of the COVID-19 virus changing the way we live our lives.  Many people have been sent home from jobs or limited in interacting in large groups.  For our children, schools are closing and many normal extracurricular activities have suddenly stopped.  To stop the spread of this highly infectious disease, we are being told to practice “social distancing”- staying away from other people and especially larger groups.

But what about families with custody orders?  To date there has been no clear message about how families should address this, and for families who already find themselves in high conflict custody arrangements, the strain will be tremendous and the path confusing. Should periods of visitation with non-primary parents be discontinued along with other “social distancing”?  What will be the repercussions if I keep my child from the other parent and how can I avoid them?  Here are some clear answers to these questions:

1.  Don’t deny visitation to the other parent unless you have a very good reason.

If you are the primary caregiver and the other parent has periodic visitation, you may be tempted to deny the other parent their weekend visitation during this crisis out of general fear that your child may become infected at the other parent’s house.  Before you unilaterally disregard your custody order, you should consider very carefully whether you have any real reason to do so.  The consequences of violating the custody order may be very real and land you in real trouble with the courts.  Our Harris and Galveston County Judges take a dim view of people violating orders- even if the reasons are well intentioned.  Denying visits may result in severe consequences for you and may give cause for a change of primary custody to the other parent or even a jail sentence in some cases.

2.  Communicate and find common ground for decisions.

Before you decide on your own to deny visitation with the other parent, communicate with the other parent about your fears and try to come to an agreement about temporary modifications to the visitation schedule.  You may find they share the same fears about the child being in your home.  If your co-parenting has been high-conflict up to this point, however, you may find this very difficult.  But you must put your best effort forward. 

Even if you have had difficulty in communicating in the past, both parents should try to put that aside (at least until this crisis is passed).   One of the best ways to handle the situation is to adopt a business-like and professional attitude to deal with the issues at hand.  Try to be focused and avoid emotional reactions.  Tell the other parent exactly what you want to talk about and stick to that only.  If they try to bring up the past or get off topic remind them of the urgency and importance of coming to agreements on how to handle the visits during this crisis.  You both may have different viewpoints of what is the best action to take with regard to keeping your child healthy.  With so many conflicting messaging on social media and the mainstream news, it is not surprising you both would have different ideas.  The most important thing is to be consistent between the two parents.  This situation is like no other and was very likely not conceived of when you made your custody order.  You may be called upon to make decisions that are outside the order.   Try to find a neutral and reliable source for a tie-breaking resource if you both disagree on how to manage this crisis.  Try to agree on one source for recommendations for your child’s safety and agree that you will both use that source for co-parenting decisions that are not covered in your court order.  You may agree to follow the advice of the child’s pediatrician for guidance. This is especially important if your child is immunocompromised or has another underlying health condition.   Or you could both agree to follow the latest recommendations found on the CDC’s website or the Texas Health and Human Services.  Whatever source you decide on , it is important that you both avoid the added conflict and stress of disagreement and you should find as much common ground as possible.  One good start in finding common ground may be in that you both express your fears for your child and reaffirming that you each love your child and have their best interest at heart.

3.  Think of creative solutions.

What solutions could you come up with that would satisfy each of your concerns about infection and health vs. the legitimate right and need of the child having contact with both parents?  If infection is a legitimate concern such as if one parent has been exposed to an infected individual, is it possible to agree to temporarily have visits outdoors and agree to keep the recommended distance from the child- perhaps playing catch, kickball or similar activity?  This may sound outlandish in different times, but these are unusual circumstances.  Can the parent have Facetime (or increased facetime).  Can you agree that the other parent will have additional periods of time with the child to make up for time lost during this crisis?

4.  Get an agreement in writing.

Get the agreement in writing and make sure each parent has a signed copy.  Insist that each have it notarized if you feel this is necessary.   A signed agreement can be used in court to defend yourself if the other parent claims you have unilaterally violated the order.

5.  If you can’t come to an agreement, you must file a modification request with the Court.

If you legitimately believe that child is at increased risk of infection if they are allowed visits with the other parent and you can’t agree with the other parent on a modification of the custody arrangement, then you must consider filing a Motion to Modify the Parent-Child Relationship and request emergency temporary orders to discontinue the visits.  If you don’t do this, you run a high risk of being held in contempt of court for denying the other parent’s court appointed visitation.  You will also have to execute and attach a “significant impairment affidavit” that details why you believe physical contact with the other parent would endanger the child.  The standard on getting such emergency temporary orders however is very high.  General or undefined fears will not be sufficient.  You will have to have special compelling reasons to believe that visits with the other parent will significantly impair the child’s health.  Reasons that may be warranted, if proved, could be:

• ·        The other parent had close contact with someone diagnosed with COVID-19;
• ·        The other parent recently traveled to Italy or China
• ·        The other parent attended a high exposure situation such as the Biogen conference in Boston that led to a breakout among attendees
• ·        The other parent may have had contact with someone infected with COVID-19 AND, your child has a compromised immune system or other underlying health condition.

Agreements are like a vaccine against family conflict and are always the first and best line of defense against the harm that comes to children as a result of parent disputes.  However, if agreements are ineffective or unavailable, then it may be time to call an experienced family law attorney. 

If you have any questions, please contact us at The Palmer Law Firm.  We encourage you to schedule a free call with one of our family lawyers, or come see us in person.  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.  If you do choose to visit us in person, you can rely on us for clean offices with restrooms and hand washing facilities and hand sanitizer.  We are here to help.  You can book your free appointment right from our Facebook page or call at 832-819-3529.

The Duty to Protect Your Children

A parent has the right and the duty to protect his child and the child's future from harm. If you're involved in a custody dispute in Harris or Galveston County, Texas you must use the local family court system to assert this right and fulfill this obligation. A parent who becomes aware of dangerous behavior or damaging influences that threaten the children's physical safety or emotional well-being can ask the court to protect the children by removing them from the source of the immediate or potential danger. A court ordered award of sole custody or the severe restriction of visitation rights are the standard methods for ensuring children's safety. These actions may be taken if the court is shown clear and convincing evidence that the children are seriously endangered by parent’s lifestyle, or parents behavior, or the environment in which here it forces the child to live.

Documented cases of child abuse in any form meet the court systems serious endangerment standard. Physical, emotional, or sexual mistreatment of a child is child abuse.

"A parent who becomes aware of dangerous behavior or damaging influences ...can ask the court to protect the children by removing them from the source of the immediate or potential danger."

Physical abuse is any action that inflicts grave physical damage, even if the injury is temporary. Corporal punishment that causes bruising, bleeding, or burning is physical abuse. So is the denial of food, water, shelter, or medical treatment. Well the difference between acceptable physical discipline and physical abuse has never been defined in law, most courts and most parents know when the boundary between the two has been crossed.

Emotional abuse includes derogatory language and parental conduct calculated to destroy or seriously undermine a child's dignity and self-esteem. Constantly berating a child, humiliating a child in the presence of family, friends, or teachers, or isolating the child from the outside world for extended periods of time are examples of emotional abuse. Relentless insults or mockery are other forms of this destructive behavior.

The legal definition of sexual abuse encompasses virtually all actions involving a child intended to lead to the sexual gratification of either the child or a participating adult. While the most common forms of sexual abuse are outright sexual acts such as fondling, intercourse, oral copulation, this category of child abuse may also Include placing the child in sexually compromising positions, using the child to produce pornography, requiring the child to wear seductive clothing, and indulging in forms of physical discipline more commonly associated with adult sexuality than parental behavior. Whether the child consents to sexual activity or is forced to participate is irrelevant in determining if sexual mistreatment has occurred.

Neglect may also constitute serious endangerment courts have revoked custodial rights of parents who have left young children alone for hours or days parents whose primary meal planning function has been leaving paint chips within easy reach; Parents who fail to treat, or even notice, the serious physical or mental illnesses of a child ; And parents who have been unable or unwilling to provide a clean, warm room for their children to sleep in.

Elements of a custodial parent’s lifestyle may be judged dangerous, or potentially dangerous, to a child, even if the child is not directly involved in that lifestyle. And lifestyle that brings potentially harmful relationships into a child's life, for example can be considered to be dangerous enough to warrant removal of the child.

Source:  Father’s Rights by Jeffery M. Leving

Top Three Parent-Child Reunification Programs After Alienation

I am often called upon to fight for parents who have been alienated from the natural affections of their children by the other parent.  However, achieving court orders designed to end devastating patterns of parental alienation are only the beginning.  Although establishing or enforcing the right to access and possession of the children, to orders of counseling, and injunctions against a parent’s alienating behavior are necessary, they are not sufficient to getting the children and the alienated parent to interact in healthy, normal ways.  The psychological healing that must take place after the gavel falls is where the real hard work lies.  An attorney who deals in high conflict cases must understand and appreciate that they need to work in partnership with mental health professionals to completely resolve their client’s problems.  And in this sensitive area, the mental health prover must be have specialized expertise in parental alienation reunification.

Mental health professionals should be screened carefully.  The client should familiarize themselves with the professionals understanding of the various parental alienation treatment models that have developed over the last several years.  Here then, are three of the most prevalent family reunification intervention models:

1.       Warshak’s Family Bridges Model.

Perhaps the best- known of the emerging models, this program is an educative and experiential program focusing on multiple goals:  allowing the child to have a healthy relationship with both parents, removing the child from parental conflict, and encouraging child autonomy, multiple perspective-taking, and critical thinking.[1]

2.      Sullivan’s Overcoming Barriers Family Camp

This model combines psycho-educational and clinical intervention with an environment of milieu therapy.  It is aimed toward the development of an agreement regarding the sharing of parenting time, and a written aftercare planning.  It is this author’s opinion that this model is best utilized if a custody lawsuit is still pending, such as if temporary but not final orders are in place.  Because it’s need for both parents to be cooperative with making agreements, this model will not work well if the communication skills of the parents are below a certain minimum.[2]

3.      Friedlander and Walters’ Multimodal Family Intervention

The flexibility and adaptability of this model makes it a good choice for families in radical transition such as those who are currently involved with high conflict litigation.  This model provides differential interventions for situations of parental alignment, alienation, enmeshment and estrangement.[3]

Children and parents who have undergone forced separation are highly subject to post-traumatic distress and mental health professionals are absolutely essential to resuming a healthy relationship.  Research has shown that many alienated children can transform quickly from resisting the rejected parent to being able to receive and show love for that parent.  But to achieve that goal, the high conflict family law attorney and the alienated client must be clear on their goals during and after the custody case.  They must work together to select a mental health provider who not only has specialized expertise in parental alienation reunification, but offers a therapy model that is best suited to the individual needs of each family.

If you have any questions about your high conflict family law case, including parental alienation and family reunification issues, please visit us at www.thepalmerlawfirm.com. 

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[1] Baker, A. (2010).  “Adult recall of parental alienation in a community sample: Prevelance and association with psychological maltreatment.” Journal of Divorce and Remarriage, 51, 16-35.

[2] Sullivan, M.J. Et al (2010). “Overcoming Barriers Family Camp.” Family Court Review, 48 (1), 116-135.

[3] Friedlander, S. & Walters, M.G. (2010). “When a child rejects a parent: Tailoring the intervention to fit the problem.” Family Court Review, 48 (1), 98-111.

How Much Do You Have to Cooperate With Visitation?

Recently, I was asked how much a mother has to cooperate in getting her children to go to visit with their dad.  She says that even though her divorce decree gives the father the right to see the children, they do not want to go with him for visitations and she doesn't want to push them to go.

Each case is different based on the facts of the case.  The age of the children, and the recent events that affect their relationship with the father would change the specific answer I would give.  But generally, I would say that even though the mother's legal obligation may be limited, her moral and ethical obligation to the kids means she should do more than the minimum demanded by law.  The mother's very question is subject to scrutiny and even a little suspicion.  The natural state is that children love their father and want to be with him.  If this is not the case, then something is very wrong and social science has shown that this this broken relationship with the father will have long term negative consequences for the children. The fact that the mother seems unconcerned that the children don't want to see their father- and is more focused on her own legal obligations suggests that she may be engaging in some passive parental alienation.

As far as her legal obligations goes, the Texas Penal Code sets out the offence of Interference with child custody:

(     
      (a)     A person commits an offense if the person takes or retains a child younger than 18 years when the person: (1) knows that the person’s taking or retention violates the express terms of a judgment or order of a court disposing of the child’s custody; or (2) has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out to the geographic area of the counties composing the judicial district if the court is a district court of the county if the court is a statutory county court, without the permission of the court and with the intend to deprive the court of authority over the child.  (b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the children to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child. (c) It is a defense to prosecution under Subsection (a)(2) that the actor returned the child to the geographic area of the counties composing the judicial district if the court is a district court of if the court is statutory county court, within three days after the date of the commission of the offense. (d) An offense under this section is a state jail felony.

[Tex. Penal Code 25.03]

There if very little case law on this subject but one court attempted to set out some guidelines:  In Ex parte Morgan, 886 S.W. 2d (Tex. App—Amarillo 1994, no writ), this court ruled that a parent could not be held in contempt where she passively failed to insist that her children visit their father, but not seek to impede the visitation or encourage the children to resist it.  The court stated that if “a parent has encourage minor children to resist court ordered visitation with the other parent, the line has been crossed between passivity, which is punishable by contempt, and overt conduct, which would be punishable. Again, the well-being of the children is served by both parents’ encouragement to the children to love and respect the other parent.”

Within the spectrum of visitation disputes, there may be instances in which: (1) a parent actively discourage or impedes visitation; (2) a parent passively fails to insist that a child comply with visitation; or (3) a parent is legitimately unable to compel a child to comply with visitation.  The courts have held that the defense of involuntary inability to comply applies only to the third alternative, and not to the first two.  Ex parte Rosser, 889 S.W. 2d 382, 386 (Tex. App.-Houston[14^th Dist.], 1995, no writ). 

While I see nothing in the law that says the mother is required to drag a child to his father’s car and put him in the front seat, the mother should do everything to encourage the visitation within reason as this is best for the child and make the child available at your front door at the designated time.  The mother has an obligation to put her own feelings aside and do truly EVERYTHING as a parent she can to foster a positive relationship and get the children to go with the dad.  The Court in the Ex Parte Morgan case clearly stated this obligation: "It is imperative that both parents recognize that their personal feelings must be submerged in cary8ing out their responsibility to obey the law and, by doing so, demonstrate to their children that they should do so as well." ( 831).

If you need more information on these issues, please visit our website at www.thepalmerlawfirm.com

Top 7 Questions To Ask When Taking Care of Kids During a Divorce

If you are divorcing or are recently divorced, it is vital that you keep your children's best interest in mind.  It is often easy to loose your bearings as you are caught in a whirlwind of legal activity and emotional distress which all divorces bring.  This turmoil can make it hard to determine if you are doing all you can do to for your child.  So here are the top seven questions you should ask yourself to make sure you are still being the best parent you can be during a divorce.

1.  Are you being there for your child?  You will be drained and you will want to withdraw into yourself during a divorce, but your children need to know that you are still there for them and you will continue to provide emotional support during this time.  Divorce is stressful on everyone and your child needs to know that you are there to answer their questions and help them process their painful feelings.  You do not need to be instantly available 24/7, and everyone needs some mental downtime, but you must make it a point to generally be there when your children need some answers, or just some hugs.

2.  Are you giving your kids needed encouragement and approval?  Kids of all ages seek out the encouragement and approval of their parents.  It is vital to their self esteem to know that you think of them often and are proud of them.  Particularly at a time when they are submerged in self doubt over the divorce, you have to show them in both expressed and subtle ways that you think they are great.  Be generous with your praise.  Carry their pictures in your wallet and their drawings on your desk.  Constantly stoke their self-esteem by praising them.  Now more than ever, they need to be assured that they are worthy of being loved.

3.  Are you treating your kids like people?  Your kids are unique individuals with their own personalities, and perspectives.  You need to be sensitive to their experience of the divorce and how they can be different from yours.  

4.  Are you trying to have a positive relationship with the other parent?  Even though you feel you would be better off having less contact with your ex, or soon to be ex, spouse, this may not be what is best for your kids.  Research has shown that children make the best recovery from divorce when both parents are actively involved in the children's life and the interaction is conflict free.

5.   Are you modeling to your kids how to handle stress?   Divorce is an extremely stressful time.  If you demonstrate your ability to handle the stress of divorce without resorting to becoming violent, verbally abuse, or using drugs or alcohol, you kids will know that it is ok if you occasionally express anger and frustration.  Kids need to see you handle stress without losing control.  They then won't be fearful when you get angry.   

6.  Are you maintaining family and community ties?  Chances are you kids are experiencing the loss of a full-time parent.  They should be allowed to find the comfort of familiar surroundings and support such as scout leaders, church leaders, friends and neighbors.  You may feel like you want to get away and start a new life from your old, but your children need the familiar ties of their community especially at this time.

7.  Are you making every effort to peacefully resolve issues with your ex, or soon to be ex, spouse?  Your kids will be less fearful and stressed if they see you and the other parent working cooperatively.  If they observe examples of flexibility, consideration and cooperation, in resolving parenting issues, they will be less fearful that the aftermath of the divorce will be a never-ending battle of wills- with them in the middle.

Divorce is one of the most painfully stressful times in anyone's lives - and even the most well meaning of parents can fall into a spiral of emotion where they forget to keep their children's best interest at the front of their attention.  When you find yourself in an emotional tailspin from divorce, ask yourself these seven questions to keep your perspective - and your focus on being the best parent you can to your children.   

Important Texas Custody Cases- Long v. Long

Long v. Long, 144 SW 3d 64 (Tex. App- El Paso, 2004, no pet.)

Holding: Standards of review, best interest factors in conservatorship proceedings

Issue: Whether court abused its discretion by modifying the divorce decree and awarding father the exclusive right to determine the primary residence of the children.

Facts: Mother and Father were appointed joint managing conservators (JMC) of their two daughters in a divorce decree that was signed on June 2, 2000, with mother having the right to determine domicile. One August 31, 2001, father filed a petition seeking modification, asking that he be awarded the exlusive right to establish the primary residence of the children, or in the alternative, sole managing conservatorship (SMC).

The trial court found that modification was in the best interest of the girls and continued the parties' JMC. However, father was awarded the exclusive right to establish the primary residence of the girls without regard to geographic locatin. Mother filed a motion for new trial which was denied by the trial court, and subsequently filed a notice of appeal.

Discussion: Once it has been determined that the abuse-of-discretion standard applies, an appellate court engages in a two-pronged inquiry: (1) whether the trial court had suffricient information on which to exercise its discretion; and (2) whether the trial court erred in its application of discretion..the traditional sufficiency review comes into play with regard to the first question; however the inquiry does not end there. The appellate court then proceeds to determine whether, based on the elicited evidence, the trial court made a reasonable decision..stated inversely, the appellate court must conclude the trial court's decision was neither arbitrary nor unreasonable.

Separation and Child Custody in Texas Divorce Cases

In Texas divorce cases where there may be a custody battle, the parties need to be very cautious about moving out of the marital home.

Moving out of the family home without your children, even if temporarily, puts your chances of getting primary conservatorship at risk. This is because few Texas judges want to uproot children and move them to a different location if it can be avoided.

Parties should make formal arrangments with their spouses about what conditions for access and possession will be granted. Normally in Texas divorce cases, this means entering temporary orders with the Court prior to moving from the home.