Four Things You Must Know About COVID-19 and the Texas Standard Possession Schedule

By Alexandra M. Geczi and James V. Esh

Since the Coronavirus maelstrom that developed last week, we’ve been fielding questions from clients about how COVID-19 is affecting their custody and visitation as set forth under their court orders and the Texas standard possession schedule. Below are a few of the questions we’ve gotten and some answers to help guide you during the chaos.  

Q:  What do I do if my ex (or soon to be ex) will not return the child to me at the end of Spring Break? 

First, assuming there is not an immediate need or emergency to the safety of the child(ren), do not panic. Second, even if your ex has told you that he will not return your child, still appear at the designated time and place for the exchange. If your exchange point is not your home, and if the other parent does not appear at the exchange location as required in the order, then purchase an item at a nearby store and keep your receipt as proof that you were there as instructed by the court order.  Third, request in writing or recorded conversation that your ex bring the child(ren) to your home or the exchange point immediately. If he refuses to do so, you have a record of his refusal that you can use later. Lastly, if your ex continues to refuse to return your child(ren) to you, it may be necessary to file a lawsuit seeking the immediate return of the children. In that case, speak with an experienced family law attorney as soon as possible. 

Q:  If my court order says my ex (or soon to be ex) has Spring Break until school resumes (or words to that effect) and he does not bring the child(ren) back on the Sunday following Spring Break in the original school calendar, can I ask the Court to hold him in contempt?  

It is unlikely the Court would hold Dad in contempt under this scenario.  Contempt hearings can be very technical, but you may have options related to contempt that you should discuss with an attorney.   You may also consider filing a modification to modify the language in your court order and ensure this type of confusion does not occur again in the future, or a motion to request make-up time.  Also, check out our recent blog Coronavirus (COVID-19), Texas Family Courts, and Spring Break about how the Texas family law community is addressing this issue. 

Q:  My ex lives in another state and we have orders that require us to place our child(ren) on an airplane for exchanges.  I am concerned about putting my child(ren) on a plane with the COVID-19 virus going around. Do I have to put the kid(s) on the plane?  

The Texas standard possession order provides that the parties can mutually agree to change the possession order.  In the event you cannot come to agreement with the other parent, then the standard possession order is what everyone must go by.  You should contact the other parent and explain your concerns about the travel. If practical, consider offering and working out alternatives to travel such as driving and meeting halfway.  Alternatively, perhaps offer extra time during the summer instead of the immediate travel of the child(ren). Ultimately, if you are unable to come to an agreement, then the orders are in place.  If Dad lives in an area where there is a reported large outbreak of COVID-19 and Dad refuses to work out an alternative option related to the visitation schedule, it may be necessary to seek an emergency order from the Court related to travel.  There are many factors to consider before filing for emergency relief but it is an option and one that you should discuss with an attorney in greater detail based on your circumstances.  

Q:  The schools have closed in my school district and I will now need to pay for day care.  Is my ex (or soon to be ex) responsible for helping pay for that cost?  

Unless your court order specifically requires the other parent to pay for or pay a portion of child day care, you ex (or soon to be ex) is probably not legally responsible to assist in paying these costs. However, you should still ask him to help pay for part of these added costs. Not only is it in the best interest of your children to co-parent during stressful times like this, if he refuses to assist with these expenses, his refusal may be grounds for a modification of the underlying orders in the future. 

Ultimately, parents should make extra efforts to work out these differences and ensure the child(ren) are taken care of and in a safe environment. It is important to stay calm and do not panic.  We understand this is not always possible, and we work with families everyday assisting them with these types of conflicts.  

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