Coronavirus and Child Possession
by Matthew Carneal, Senior Associate Attorney; Angie Bourne, Senior Paralegal Extraordinaire; and Christine Henry Andresen, Managing Attorney
As we all adapt to rapidly changing new realities in light of the COVID-19 pandemic, questions arise about how the current situation affects child possession.
For one thing, nearly all possession schedules contain provisions that have to do with school calendars—for example, periods of possession that begin or end when school is dismissed for a break or when school resumes. What does that mean in a situation with widespread, extended school closures?
The Supreme Court of Texas recently issued an order regarding child possession. The paragraph that addresses this issue states:
This order applies to and clarifies possession schedules in Suits Affecting the Parent–Child Relationship. 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 COVID-19 pandemic.
What does that mean?
It means that all references to the school calendar will be treated as referring to the original school calendar, unaffected by closures due to the pandemic. For example, even if the school email references an extended Spring Break for an extra week or more, that does not extend the Spring Break possession period.
Q: I’m worried about my child getting exposed to the virus. Do I have to turn over my child to the other parent during their possession periods is the other parent is irresponsible about isolation, social distancing, etc.?
The basic rule is that you have to comply with existing court orders whenever possible, or you could be held in contempt. We never advise clients otherwise. While a court would very possibly be sympathetic to a parent who refused to hand over their children when the other parent planned to fly to Italy or Wuhan, China, if the other parent merely in another city in Texas, the best legal advice for most people would be to continue to follow the court’s order.
Bear in mind, however, that all orders allow for the parents to negotiate and agree to deviate from the order. If both parents are concerned about following the order as written, they can come up with alternate plans like extra phone visits, skype, video chats, or even agreeing to postponing visits and agreeing to additional make up time later.
Keep in mind that this is an evolving, fluid situation with new rules, laws, and restrictions are being made daily. If the state takes further steps to restrict travel within or between cities/states, that could make it impossible to comply with certain possession orders and additional guidance would be needed from the courts on how to proceed. And when in doubt about how the general rules apply to you, always consult with your lawyer about your specific circumstances!