By: E. A. Putman
Child custody concerns during the coronavirus crisis. Say that three times fast. This is a time where families should come together, support one another and attempt amicability as best as possible. Nonetheless, there are parents who are on both ends of the spectrum of either confusion or manipulation regarding their court orders.
The State of Texas and public officials are scrambling to stop the spread of Coronavirus or COVID-19. In the last week, Over 30 Houston-area school districts have canceled classes as a response. Because of the unprecedented nature (and somewhat “convenient” Spring Break timing) of this event, many educational officials are calling the prolonged cancellation of classes an “extended spring break”. This term, while a hooray to many children and a headache to many working parents who are unable to take time off from
work or find alternative care, has inundated the phone lines of family law firms of Texas. Texas schools will start Spring Break between March 9, 2020 and March 16, 2020.
The primary question posed by parents: “If my child’s Spring Break is extended do I/ other parent get to extend our possession and access time?”
Many of the school districts in the Houston area have closed their school doors until March 30, 2020 and parents are wondering who has possession and access after the initial Spring Break. There are a two primary considerations to address: (1) What does my court order state? (2) What will the judge say…if and when the other parent files an enforcement action or writ of habeas corpus for allegedly violating the court order?
What Does My Court Order State?
Under the Standard Possession Order, for parents who reside less than 100 miles a part “the [non-primary parent] shall have possession in even-numbered years, beginning at 6 p.m. on the day the child is dismissed from school for the school’s spring vacation and ending at 6 p.m. on the day before school resumes after that vacation.” Texas Family Code Section 153.312(b)(1). Even for parents who reside over 100 miles a part, Sec. 153.31 clarifies that the non-primary parents possession and access ends at 6 p.m. on the day before school resumes after that vacation.
The non-primary parent may be tempted to argue that since school isn’t resuming until a later date, then they are not in violation of the court order if they fail to return the child on the Sunday prior to the child’s Spring Break ending.
The “extended Spring Break”/ extended possession argument is a risk, especially since many Texas judges have issued statements regarding possession and access under the Texas Family Code.
What Will the Judge Say?
If you are in the midst of custody litigation or foresee an imminent custody battle, it is advisable to follow the court order possession and access schedule as if this is a regular Spring Break. Return the child. According to Judge William Wallace of Ellis County (south of the DFW Metro area), “Any school suspensions or extensions of Spring Break in the wake of the Coronavirus, beyond the originally scheduled Spring Break, are not an extension of the Spring Break Holiday as contemplated in the Texas Family Code…” A parent who may manipulate this crisis to acquire more time with their child may not have a favorable outcome in court. Litigation may be ensued in the form of a Motion to Enforce Possession and Access by Contempt or a Writ of Habeas Corpus proceeding.
While Harris County courts are operating on a limited basis during this crisis, the March 12th Order stated that certain “essential cases” will be heard by the Family District Court Division, including suits brought under Chapter 157, Subchapter H of the Texas Family Code which are Petitions for a Writ of Habeas Corpus. Under a Petition for a Writ of Habeas Corpus, a person who is entitled to present possession of the child files a lawsuit stating such and the court “shall compel return of the child to the relator only if the court finds that the relator is entitled to possession under the order.” TFC 157.372(a).
Is it alright to co-parent for a bit?
While the Standard Possession Order (or your customized court order) lays out the terms for possession and access during Spring Break, it is always advisable and even encouraged for parents to, well, co-parent. Therefore, the parties may agree to extend Spring Break or deviate from the possession and access schedule during the COVID-19 period to accommodate the schedules of one another. According to Texas Family Code Sec. 153.311, “the parties may have possession of the child at times mutually agreed to in advance by the parties.” But, in this case, it is advisable for the parties to agree in writing just to C.Y.A.
The first section of the Texas Family Code that deals with possession and access states that it is the public policy of the State of Texas to “provide a safe, stable and nonviolent environment” for children as well as “encourage parents to share in the rights and duties of raising their child.”
At The Putman Firm, PLLC we understand that sometimes court orders are not clear or can be a bit confusing. If you need assistance in determining your rights as it relates to possession and access, please do not hesitate to contact us at (281) 501-9033. Your health and safety is paramount to us during this COVID-19 crisis, but we understand the need for expert advise. Thus, we also offer phone and video consultations through our Your Family Law Attorney portal.