Child Possession Schedules During the COVID-19 Pandemic

Parents across the country are navigating new frontiers during the COVID-19 pandemic including home schooling, stocking their pantries, and entertaining kids who can’t play with the neighbor kids or go to the playground. Parents who are divorced or separated have the added challenge of co-parenting across two houses and exchanging possession of children. Parents are asking fair questions about how changes in school calendars, shelter in place orders, and general fears of a child possibly being exposed to the virus at the other parent’s house effect their obligations under their current possession order.

Can I keep my child with me for as long as school is closed since I had my child for Spring Break?

Most people have a possession order which states that one parent gets possession of the children during Spring Break beginning when school gets out for Spring Break and ending either when school resumes after Spring Break or at 6:00 p.m. the Sunday before school resumes.  When school districts began announcing that school would not resume on the date originally planned, many parents who already had possession of their children decided to treat this as an extended Spring Break.  Even now, when some schools are closed for a third straight week, some parents are maintaining their possession of their children and refusing to deliver them to the opposing party.  

Fortunately, many district courts and finally the Supreme Court of Texas have weighed in on this problem and issued orders which are binding and enforceable on everyone with a possession order in this state.  The various court orders all have similar language which summarize to the following:

Parents shall exercise possession of their children pursuant to the originally published school calendar for the school district where the children attend or, if the child is not yet in school, then for the public school district in which the child resides.

In other words, if your children were scheduled to return to school at 7:45 a.m. on Monday, March 16, 2020, then you were supposed to return your child to their other parent at that time and you should you should have resumed your regular schedule after that.

If schools remain closed for the remainder of the year, when does “Extended Summer Possession” begin?

As stated above, parents should exercise possession pursuant to the school calendar that would have been in place if there had been no pandemic.  For example, if school was scheduled to release for the summer break on May 20, 2020, then May 21, 2020 is the first day of summer.  That means that deadlines for designating in writing the summer possession dates you want to have the children still apply. For most people, those dates are fast approaching – April 1, 2020 if you get to select your dates first, and April 15, 2020 for the other parent. 

Do I still get to exercise my weekday possession if school is canceled for the rest of the year?

The Texas Supreme Court Emergency Order regarding possession during the current pandemic also means that for those who have weekday possession (typically a Wednesday or Thursday night possession) which only occurs during the school year still have a right to exercise that weekday possession right now. This can be an overnight possession or possession from 6:00 p.m. to 8:00 p.m. depending on the terms of your order.

One of my child’s parents lives in a county or state that has issued a “Shelter-In-Place” order. Do I still have to exchange possession of my child with the other child?

If you or your co-parent lives in a county where a shelter in place in order has been issued, you should still exchange possession of your child with the other parent. Some District Courts have already issued an emergency order designating this type of outing as an “essential” outing and specified that the shelter-in-place order does not excuse parents from exchanging possession. It is strongly expected that most (if not all) district judges will take the same position or policy. Theoretically, this could change if municipal, county, or state governments issue orders specifically prohibiting this kind of activity.  But at present, it is not prohibited by any shelter-in-place orders in Texas. 

I am afraid that my child’s other parent will not take precautions sufficient to protect my child from COVID-19, and I do not want to exchange possession with him or her. Can I unilaterally decide to keep my child home with me?

You cannot retain possession of your child without the other party’s agreement if you have a court order that states you are supposed to give the other party possession of the child simply because you are afraid the other parent may fail to adequately protect your child from COVID-19.  If you have a legitimate concern that you believe qualifies as a “special circumstance”, you should consult a family law attorney in your state who can advise whether your situation or concerns might be sufficient to obtain an emergency order restricting the other parent’s possession.  At this time, it is unlikely that (barring very special circumstances) a Court will intervene and limit a parent’s possession of his or children simply because he or she is not practicing social distancing or is suspected of not being a thorough hand washer.  Special circumstances which might be sufficient could include if the other parent or a member of that parent’s household has tested positive for COVID-19.  Another consideration might be if the child has a condition which places him or her in a high-risk category.  The author is not aware if these issues have been presented to a court for determination and, if so, what the determination by the court was. 

My co-parent is refusing to give me possession of my child during a time I have a right to possession of him or her under a court order.  What can I do?

If your co-parent will not give you your child at a time you have a right to possession of that child, you should contact a family law attorney immediately.  A family law attorney can file a series of emergency motions and ask the Court to order the police to assist you in taking possession of your child.  Without an order specifically directing the police to assist you in taking possession of your child, the police are unlikely to help. The police correctly view possession orders or divorce decrees as “civil matters” which are outside of their purview of “criminal matters.” Often, a family law attorney can secure possession of your children on the same day or the day after you consult with him or her depending upon the availability of the court and the time of day you meet with the attorney.  This could take longer if you and your co-parent live in different states.

Contact a family law attorney.

Even as many parts of our society grind to halt in an effort to slow the spread of the virus, we know that your and your family’s legal needs have not ended. The family law attorneys at Albin Oldner, PLLC are ready to answer your questions during the COVID-19 pandemic and are equipped to assist you with whatever challenges you and your family have encountered.  We are available to meet by phone and by video conference.  We are even conducting hearings and mediations via telephone and video conferencing.  Call (214) 423-5100 or email mpeters@albinoldnerlaw.com for an appointment.