What About My Weekend Visitation Rights: When the “Stay at Home” Order Replaces “Social Distancing”

By: E.A. Putman

I called it weeks ago. On March 3rd, after finishing a particularly nasty two-day divorce trial, I traveled to Central Market to celebrate per the usual by going to get food samples until I figured out what I wanted to eat for dinner. The sample stations, which are usually about 10, were nowhere to be found. I called my husband and told him that they must’ve figured me out. Not likely. Central Market was a step ahead of many stores, restaurants, businesses in the “we are combating COVID-19” plight.

Since that day, I have been to court one other time, fully decked in latex gloves and a

court covid (2)
Last court appearance: I received weird stares going through security with a mask and gloves, but better safe than sorry.

face mask leftover from the stash when I had the flu in January. My case was reset upon my arrival so I took the time to observe a modification of custody  in the same court I’d just won a divorce and wrote a sombering post about how newly licensed lawyers and entrepreneurs could learn a thing or two just by observing. Sigh. The good ole days. Now, we are all just trying to figure out how to live in the new normal.

First the schools closed and parents were unsure about childcare, then Spring Break was “extended” and parents were either confused or manipulating the language. Based on the influx of possession and access questions plastered on Facebook, it was soon apparent that navigating through the nuances of child custody during the Coronavirus would be a crisis.

Under the Standard Possession Order, the NCP shall have the right to possession of the child on weekends throughout the year beginning at 6 p.m. on the first, third, and fifth Friday of each month and ending at 6 p.m. on the following Sunday.” Texas Family Code 153.312. Many parents do the pick up/ drop off routine at the home of the primary parent. But, what happens when the pick up/drop off is at a remote location (i.e. police station, school, McDonalds, etc.)? Theoretically, even under normal circumstances, those places do not have to be open for the pick up drop and drop off to occur. But, what happens when one parent is not willing to surrender the child or exercise visitation in light of a “stay at home” mandate.

According to the Houston Chronicle , Judge Lina Hidalgo is “expected to order most residents to stay home except for groceries and errands…effect[ive] at 11:59 p.m. Tuesday,” March 24, 2020. There is not going to be a “shelter in place” because Hidalgo says that, it is not the “right term” as it invokes “hurricanes, chemical incidents, makes you think of an active shooter drill.” Well, a rose by any other name would smell as sweet–you can put a Texas spin on it and call it a hunkerdown. It is still a measure that would hopefully alleviate the spread of COVID-19 and unfortunately allow parents to deny or be denied their visitation.

I am not certain where the Houston vs. Dallas beef originated, but in my opinion, the Big D is currently in the lead. It was the first metropolitan in Texas to order a shut down  as well as make provisions regarding the possession and access period during their shut down. According to the Dallas County District Court’s Joint Statement released on March 22, 2020 (reprinted below), exchanges related to possession and access to children are consider essential activities,  so they will continue to take place during the shut down. Furthermore, while the current pandemic may not modify a parents current  possession and access schedule, circumstances surrounding the pandemic may affect the possession and access schedule. Hmm.

If Harris County Family Court Judges adopt a Joint Statement model similar to this, it will inevitably lead to increased litigation in a county where the courts are operating on a skeleton shift. Picture this from a primary parent:

“I know mom/dad has their visitation next weekend, but I don’t feel comfortable allowing them to exercise visitation because I know they went to X house for dinner,  Y’s restaurant for curbside and Z’s grocery store for groceries, thereby increasing the chances of contracting COVID-19 and subsequently giving it to our child. Nope.” 

It is a plausible scenario in our new normal world. As more tests become available and people are testing positive for COVID-19, the custodial parent would have every right to feel anxious. But, can they act on their anxieties by denying visitation? Will those actions eventually hold them in contempt? While we will wait on direction from our elected officials, we will strive to keep calm and carry on.

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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.

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