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How does Covid-19 and the Stay-Home orders affect children with two homes?

A lot of questions have been asked about how the emergency measures related to Covid-19 affect child custody orders. Must a child be turned over at the time in a court order when there are emergency stay-home or shelter-in-place orders?

Spring Break

Covid-19 struck Texas during spring break. Many districts announced they would not reopen when spring break was supposed to end. This caused confusion for parents about whether children had to be returned when spring break was supposed to end but school never resumed.

Section 153.312(b)(1) of the Texas Family Code addresses spring break when parents reside within 100 miles of each other. It requires a child be returned “at 6 p.m. on the day before school resumes after that vacation.” “Vacation” refers to spring break in even-numbered years. §153.313 includes a similar requirement when parents reside over 100 miles apart. Under 153.313(2) the children spend every spring break with the non-primary parent, but it also ends “at 6 p.m. on the day before school resumes after that vacation.”

If school never resumed after the spring break (spring vacation), did the children have to be returned?

There was no law to guide attorneys in answering this question and opinions varied wildly. Some said the intent of the order should be enforced, while others argued in favor of the actual language.

Fortunately, on March 17, 2020 the Texas Supreme Court issued its Second Emergency Order Regarding the Covid-19 Disaster. That order included:

“For purposes of determining a person’s right to possession of and access to a child under a court-ordered possession schedule, 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 COVID19 pandemic.”

The Supreme Court had ordered the children be returned under the original school schedule. The Second Emergency Order also includes:

“Nothing herein prevents parties from altering a possession schedule by agreement…”

Parents are encouraged to work together in their children’s best interest.

Stay-Home & Shelter-In-Place Orders

As municipalities started issuing orders to stay home, limit travel and exercise social distancing, parents wondered whether children must be exchanged under existing orders. Some parents work in a field that puts them at greater risk of exposure, others have large households with people coming and going. Some contend the other parent is not exercising sufficient precautions, and some look for reasons to not return the children.

In its Seventh Emergency Order Regarding The Covid-19 State Of Disaster, issued on March 24 2020, the Texas Supreme Court stated:

“Possession of and access to a child shall not be affected by any shelter-in-place order or other order restricting movement issued by a governmental entity that arises from an epidemic or pandemic, including what is commonly referred to as the COVID-19 pandemic.”

The order clarifies that existing court orders are not affected by a stay-home or shelter-in-place order. This does not affect a court’s authority to modify an existing order. If a child is genuinely at risk in the other parent’s home, a motion may be filed requesting an immediate modification or new order. Otherwise, the children must be exchanged under the existing court order.

Court Proceedings

To accommodate restrictions on movement and social distancing, the Texas Supreme Court has temporarily modified procedures. The court’s First Emergency Order Regarding The Covid-19 State Of Disaster, issued March 13, 2020, allows lower courts to modify deadlines and procedures for up to 30 days after the governor lifts the state of disaster, conduct proceedings remotely and even away from the courthouse, and extend statutes of limitations. This is clarified in the Third Emergency Order Regarding The Covid-19 State of Disaster, dated March 19, 2020. The public and participants must receive reasonable notice of proceedings away from the courthouse, and deadlines in CPS cases are extended like all others.

Read Your Order

All Supreme Court emergency orders clarify that existing child custody orders are unaffected by the disaster. Read your order. People become accustomed to what works for them or an informal schedule they have been following, and misunderstand what their order actually says. Check the exact language, times and circumstances of your current court order.

If the order has become temporarily unworkable, contact the other parent about agreeing to adjustments. Although courts are conducting business, they are limited and slow. Video conferences are slow and cumbersome. A judge might not agree that your situation qualifies as an emergency so you might not get a hearing.  As always in cases with children, agreement between the parents is important and efforts should be exhausted before involving the courts.

McNamara Law Office, PLLC has been paperless for years. We are accustomed to working remotely with courts, clients and opposing counsel. We are fully prepared to meet our clients’ needs through video conferences and remote hearings.

The Coronavirus Conundrum: Spring Break – To Return or Not to Return?

Must a Child be Returned when Spring Break was Supposed to End
if School Does Not Resume?

With the Coronavirus pandemic hitting our country at the time many school districts are recessed for the Spring Break holiday, many parent conservators are wondering whether they must return the children to the other parent after learning the break has been extended for an additional week or more.  The simple answer is, it’s not a simple answer.

Many Texas Divorce Decrees, if they follow the Standard Possession Order set forth in the Texas Family Code, provide as follows:

“the possessory conservator shall have possession in even-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school for the school’s spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation.” Tex. Fam. Code §153.312(b)(1).

With school closures piggybacking on top of the spring vacation, the language in the Order leaves some room for interpretation regarding what “the day before school resumes after that vacation” means.  Additionally, school districts worded their school closing announcements differently.  Some districts simply stated schools would be closed, while others stated they were extending spring break.  Intellectual debates even broke out in the online legal communities arguing about whether a parent can legitimately keep the children for the entire time the schools are closed during this “social distancing.”

When a person violates a court order, they may be held in contempt.  The Supreme Court of Texas stated it “is an accepted rule of law that for a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific and unambiguous terms.” Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967) (orig. proceeding). If an order is ambiguous, or a situation arises which causes the terms of the order to become ambiguous, a person cannot be held in contempt for failing to comply with its terms.  In light of Slavin, it is unlikely that a parent who keeps the child past the school’s originally scheduled spring vacation with the understanding that the “spring vacation” is not over, will be held in contempt.

This does not mean the Judge cannot reprimand a parent in other ways if the Judge believes he or she is playing games with the possession schedule.  A judge can order one parent to pay the other’s legal fees and/or order that the other parent receive make up time with the children if they were not returned promptly.  Some Courts have gone so far as to issue a public statement that parents should return the children at the time the spring vacation was originally scheduled to end, to allay any doubt about that Judge’s opinion on the matter.

One thing is certain – if a parent chooses to keep the children for an extended period of time without the other’s consent, it will result in litigation and legal fees.  The best option is to work with the other parent to reach an agreement regarding possession.  The kids will be out of school for several more weeks and both parents will likely be juggling their own jobs while trying to manage the school closures.  It’s best for all involved, especially the children, if parents can work together during this time to help each other manage as best as they can.

The bottom line is that even if a parent cannot be technically held in contempt, and jailed, they can be ordered to pay the other’s legal fees, give the other make-up time with the child(ren), and whatever other creative penalties the Judge thinks of.

**UPDATE**

In response to this unique situation, the Supreme Court of Texas issued an emergency order, effective March 13, 2020 through May 8, 2020, to specifically address this issue.  The Order states:

“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….”

The Order goes on to state that the parties may alter the existing schedule by agreement.

TX Supreme Ct. 2nd Emergency Order re Covid-19 – Spring Break

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