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Coronavirus and Child Visitation

This material was written by TexasLawHelp and is current as of April 1, 2020. 

 

My child is somewhere with a shelter-in-place order. Can they travel?

The Texas Supreme Court issued an order March 24, in effect until May 8, 2020, saying that for 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. 

Possession of and access to a child (often called visitation) is NOT affected by any shelter-in-place order or other order restricting movement that your city or county issued because of an epidemic or pandemic like COVID-19

Many Texas shelter-in-place orders specifically state that traveling to exchange the children is not a violation of the orders.

Example: Dallas County issued a shelter-in-place order effective March 23, 2020. Dallas family courts have provided this joint statement about the issue. Exchanging your children is an essential activity under the Dallas shelter-in-place orders. That means you would not likely be violating the shelter-in-place order if you can show that you are exchanging a child.

The coronavirus situation is unprecedented. Your best option is to work out an agreement with the other parent. Look at TxAccess.org for cooperative coparenting ideas and tips. The State Supreme Court encourages working with the other parent. 

If the other parent files a motion to enforce against you, there are several affirmative defenses. They are listed in Texas Family Code 157.006(b).

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 are saying you could not comply with the visitation orders, you have to show that you were legitimately unable to comply. Get legal advice about your circumstances. Communicate with the other parent. Keep proof about why you could not send your child for visitation—if it is really not possible. 

 

Can I keep my child from the other parent if I think someone in the family is at risk of getting coronavirus?

If you do not let the kids go during their court-ordered visitation period, 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 you could be held in contempt of court. If this happens, talk to a lawyer. Use our Legal Help Finder tool. Under very limited circumstances you might have the right to a lawyer in a family law case

Whatever you decide, you need to have documentation about why you did it and what you did. It might be possible to build a defense, but you should talk to a lawyer. Take a look at the Visitation Journal Template for help documenting incidents. Remember, you MUST be able to prove your concerns to the judge, and this might help you do it.

Things you will want to document include: the date of the scheduled visit; the time of the visitation attempt; the time police were called (if applicable); and police report number (if applicable). Write down the details about any specific things that made you worry about the person's health or ability to care for the child. Law enforcement might not send an officer for a custody dispute during this emergency; they may prefer that you make a report online or by telephone.

Write down the names of third-party witnesses and how to contact them. Document what happened. Save all the child's medical records. Take screen shots of communications. Take notes during conversations and consultations.

There are few clear answers in this situation. But remember that the best interest of the child is the standard the court must follow when it makes court orders about custody and visitation. Also, you have a duty to protect your child. If you have concerns about your child’s health or safety, call the Child Abuse Hotline, 800-252-5400. For the latest information and resources for CPS cases, see the Texas Children's Commission's COVID-19 web site.

Study your court orders to make sure you understand your rights and duties as to your children’s health, safety, and welfare. TexasLawHelp's final decree of divorce form and orders in suit affecting the parent child relationship include the typical rights and duties of a parent under the Texas Family Code. 

 

I am afraid to send my child for visitation because of COVID-19.

The Texas Supreme Court's Seventh Emergency Order Regarding the COVID-19 State of Disaster clarifies what to do about possession and access of children when shelter-in-place orders are in effect. Possession of and access to a child are not affected by any shelter-in-place order or other order restricting movement issued by a governmental entity that arises from a pandemic.

As long as your court orders say it is OK, you and the other parent or conservator are free to agree to whatever possession and access and exchange methods works for your family. 

There could be many reasons you do not want your child to go with the other parent during the coronavirus crisis.

Some examples:

  • Someone in the household has been diagnosed with COVID-19;
  • Someone in the household might have been exposed to COVID-19; 
  • Social distancing is recommended but you think the other parent’s social distancing practice is not good enough;
  • There is someone especially vulnerable in the home, such as an elderly person or someone with a compromised immune system; or
  • The child has been exposed to COVID-19 and might expose someone else in the other parent’s household.

However, the court orders are still in effect unless you go back to court to modify them and the judge does modify them.

Look at your court orders to see what rights and duties you, as a parent, have. These duties are usually the ones listed in Texas Family Code 151.001 and 153.073 and 153.074. There are rights and duties you have at all times, and other rights and duties that you have when the child is with you.

Depending on the level of threat to the child, refusing to return the child might be a valid option if you think the child is in imminent danger. If possible, talk to a lawyer about your situation before taking any action. For general legal information, call the Access and Visitation hotline at (866) 292-4636 between 1 p.m. and 5 p.m., Monday – Friday.

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 talking to the parent doesn’t work and the danger to the child is immediate, call 9-1-1 (for an emergency) or CPS at (800) 252-5400 (if you suspect the child is being abused or neglected).

Dallas County family courts issued an order on March 23, 2020, explaining what to do under these circumstances (if you are in Dallas County). It may help you figure out how to move forward. Basically, if a parent, conservator, or child has been diagnosed with, or has reason to believe they or have been exposed to the COVID-19 virus, you must tell the other parent about the diagnosis or exposure. Then, you must discuss actions necessary to protect the child’s safety and welfare.

 

 

 

 

 

How does spring break visitation usually work?

Unless the possession and access sections of your court orders say something different, the way visitation usually works in the standard possession order depends on how far apart the parents (or conservators) live from each other.

When they live less than 100 miles from each other, then—in even-numbered years like 2020—the noncustodial parent has the children from 6 p.m. on the day that the child’s school dismisses for Spring Break. Then the noncustodial parent must return the child to the place (usually the custodial parent’s house) specified in the court orders by 6 p.m. the day before school resumes.

When the parents live more than 100 miles from each other, the noncustodial parent is entitled to spring break visitation every year. That visitation is also from 6 p.m. on the day that the child’s school dismisses for Spring Break. Then the noncustodial parent must return the child to the place specified in the court orders by 6 p.m. the day before school resumes. 

If your orders are different from the standard possession order, your spring break visitation might be different. You need to look at what your paperwork says. Show it to a lawyer if you have questions. 

 

The other parent has the child but I think it is my turn for visitation. What can I do?

If you think the other parent is not going to let you see the child for visitation because of coronavirus concerns, you may want to read the following articles, bearing in mind that the coronavirus outbreak is a situation that has never occurred before and these options might not be appropriate.

My child’s school extended its spring break or closed for the rest of the year because of coronavirus prevention measures. What does this mean?

Many Texas school districts have extended their spring breaks and changed their schedules in 2020 to try to keep coronavirus disease from spreading.

The Texas Supreme Court has issued an order, effective through May 8, 2020, clarifying that the standard possession order and originally published school schedule still apply.  Click here for the order.

So, for purposes of determining when a person’s right to child visitation under a court-ordered possession schedule occurs, the original published school schedule shall control in all instances. Possession and access shall not be affected by the school’s closure that arises from an epidemic or pandemic, including what is commonly referred to as the COVID-19 pandemic. The original school schedule as published should still be followed. The standard possession order, if that is what you have, is still in effect. See TexasLawHelp’s Coronavirus page. Note that the Texas Family Code is unclear about this particular situation. 

Keep yourself up-to-date on what's going on in your county and in the school district where your child goes to school. You may need to check with the family courts in the county that issued your custody and visitation orders. You are best served by talking to a lawyer who practices in the county that issued your court orders. 

Most standard possession orders let parents arrange for visitation schedules that work for their families if they mutually agree. But as the Texas Supreme Court has said, you may want to consider modifying your court orders to address situations like this. See Changing a Custody, Visitation or Child Support Order. TexasLawHelp does not yet have forms that contain language that applies to visitation during a pandemic. You may need to hire a lawyer to help you create appropriate orders. Consider limited scope legal representation.

 

What might happen if the other parent files a motion to enforce visitation?

If the other parent files a motion to enforce visitation, you should still file an answer.  See How to File an Answer in a Family Law CaseTo file online, go to E-File Texas and follow the instructions. 

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. 

 

I'm supposed to see my child Thursday nights. Do shelter-in-place orders prevent that?

The 6 - 8 p.m. Thursday evening visits that many parenting plans include is still legally binding. Show your orders to a lawyer to help you understand what applies in your situtation. Read the Texas Supreme Court's order. You will not get in trouble for seeing your child even if there is a shelter-in-place order in effect.

The Texas Supreme Court has issued an order effective March 24, 2020, expiring May 8, 2020, making it clear that shelter-in-place orders don't override your orders.

 

 

The other parent or conservator and I live in different states. What do we do?

Effective March 30, 2020, travelers coming by road from Louisiana to Texas are ordered by the Texas governor  to self-quarantine. The Department of Public Safety did issue some guidelinesQuarantines may apply if you are coming to Texas from other states as well. Check the web site of the office of the governor for the latest orders.

However, the Texas Supreme Court ordered that the terms of your suit affecting the parent-child relationship are unaffected by shelter-in-place orders or other order restricting movement issued by a governmental entity that arises from an epidemic or pandemic. That means that your court-ordered visitation terms still apply. 

Try to work out an agreement with the other parent. Look at TxAccess.org for cooperative coparenting ideas and tips. The State Supreme Court encourages working with the other parent. If you cannot come to an agreement with the other parent or conservator, talk to a lawyer.  

Keep a copy of your court orders with you, along with a copy of the Supreme Court's emergency orders (or at least this link to it). Keep proof about why you could not send your child for visitation—if it is really not possible. 

Whatever you decide, you need to have documentation about why you did it and what you did. It might be possible to build a defense, but you should talk to a lawyer. Take a look at the Visitation Journal Template for help documenting incidents. 

Things you will want to document include:

  • the date of the scheduled visit;
  • the time of the incident;
  • the name of law enforcement officers involved (if applicable);
  • law enfocrment report number (if applicable); and
  • the names of third-party witnesses and how to contact them. 

Remember that the best interest of the child is the standard to follow.