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.
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.