Coronavirus and Child Visitation

In determining a person’s right to possession of and access to a child under a court-ordered possession schedule, the existing trial court order controls in all instances. Unless your order states otherwise, you must follow your custody and visitation order regarding periods of possession, even if a family member is ill.  

In most cases, your best option is to work out an agreement with the other parent. Look at TxAccess.org for cooperative co-parenting ideas and tips. The State Supreme Court encourages working with the other parent. This video from Legal Aid of Northwest Texas gives an overview of co-parenting during the coronavirus pandemic.

As long as your court orders say it’s OK, you and the other parent or conservator are free to agree to whatever possession and access and exchange methods work for your family. But, if the agreement breaks down, all parties must go back to following the court order. This is because your court order is still in effect unless you go back to court to modify it and the judge signs a new order modifying it.  

If you cannot reach an agreement and you are still concerned that sending your child poses a grave risk to your child, talk to a lawyer. If there are serious health concerns that are not addressed in the current order, one option might be to modify the visitation order. You will have to show the court that there has been a "material and substantial change" with either of the parents or the child since your last order. Read the following article for more information: Changing a Custody or Visitation Order.  

If you do not let your child go during their court-ordered visitation period or if you are physically unable to send your child for visitation due to coronavirus related reasons, know that anyone who does not follow a court order takes a risk. The risk is that the other conservator might file a motion to enforce, and the court could hold you in contempt. If this happens, talk to a lawyer. Use our Legal Help Directory. Under limited circumstances, you might have the right to a lawyer in a family law case in an enforcement action against you. 

Note: Even during the height of the COVID-19 crisis, the Texas Supreme Court issued several orders making it clear that shelter-in-place orders did not override custody and visitation orders. The Texas Supreme Court’s emergency orders clarified that custody of and access to a child were not affected by any order restricting movement issued by a governmental entity that arises from a pandemic.  

In addition, possession and access was not be affected by the school closures that arose from the pandemic because the originally published school schedule controlled in all instances. 

In most cases, your best option is to work out an agreement with the other parent. Look at TxAccess.org for cooperative co-parenting ideas and tips. This video from Legal Aid of Northwest Texas gives an overview of co-parenting during the coronavirus pandemic. 

As long as your court orders say it’s OK, you and the other parent or conservator are free to agree to whatever possession and access and exchange methods work for your family. Talk with the other parent about your concerns, and try to work out a solution that allows the child to stay safe and healthy. 

If you the other parent is not going to let you see the child for visitation, and you do not agree, you may want to read the following articles: How to Enforce a Visitation Order, and What to Do When a Parent Refuses to Follow a Court Order and Return a Child. 

If the other parent files a motion to enforce visitation, you should file an answer. See How to File an Answer in a Family Law Case. 

You should also talk to a lawyer. Use our Legal Help Directory. Under limited circumstances, you might have the right to a lawyer in a family law case in an enforcement action against you. 

In an enforcement case, the other parent may ask the judge:

• for contempt (like fines, probation—even jail time);
• to be reimbursed for expenses incurred in attempting visitation that was ultimately denied;
• for additional parenting time/make-up parenting time to spend with the children. 

If the other parent files a motion to enforce against you, one defense is that the other parent voluntarily relinquished actual control and possession of the child. Texas courts have also held that an involuntary inability to follow the court orders can be a defense to a motion to enforce. If you say you could not comply with the visitation orders, you have to show that you were legitimately unable to comply. If you need to raise one of these affirmative defenses, talk to a lawyer.