Social Distancing and Access in the Midst of a Pandemic
The coronavirus pandemic has touched virtually every area of our lives and perhaps none more than child custody and visitation for divorced parents. With recommendations from the Centers for Disease Control to minimize the number of interactions with people, parents have legitimate concerns about the risks involved when sending children back and forth between households.
Though no shelter-in-place orders are currently in effect, public health experts warn that we could see a significant resurgence of the virus as we move into the winter months. As a divorced parent, you may have a number of questions regarding what you (and your children) can do. Fortunately, the Texas Supreme Court has addressed many of the potential concerns related to COVID-19 and possession.
Can You Limit or Suspend Visitation Due to Fears About COVID-19?
The Texas Supreme Court has stated that all court orders regarding possession and access shall remain in effect and be controlling during the pandemic. A custodial parent must allow the non-custodial parent to have time with minor children in accordance with the terms of their possession and access order. If you have legitimate concerns about your child’s health, or the health of other family members, you may petition the court to modify the access schedule. For the court to grant such a request, you typically must provide new evidence showing a substantial change in circumstances and demonstrate that a revised schedule would be in the child’s best interests.
If you try to withhold access to minor children from the non-custodial parent without modifying the order, you run the risk of being held in contempt of court and facing fines or even jail time. The court also can order you to pay any expenses incurred by the non-custodial parent related to the denied visitation and can require additional visitation to make up for the lost parenting time. If possible, you should attempt to work out an agreement with the custodial parent that minimizes the risks to everyone involved.
What If Texas Reimposes a Shelter-in-Place Order?
When the Texas Supreme Court issued its prior ruling holding that possession and access orders remain in force, a shelter-in-place order was in effect. In fact, the emergency order issued by the Texas Supreme Court on September 18, 2020, specifically held, in paragraph 12, that possession and access are not affected by shelter-in-place orders or other governmental orders restricting movement during the pandemic. Accordingly, you can expect that the same principle will apply should another shelter-in-place order be implemented.
Can a Custodial Parent Who Is an Essential Worker Risk Loss of Custody?
As an essential worker, you may have concerns about the impact going to work might have on your rights as a custodial parent. Because you are out in the work force, you have a potentially greater risk of exposure to the virus. In addition, you may not be able to be home with your children if they are attending school remotely. If you allow the children to spend more time with the other parent, can you risk losing possession/custody? Can the other parent seek to change the custody relationship because of concerns about your risk of exposure?
To both questions, the answer is probably not. Under the Texas Supreme Court’s emergency order, an existing possession and access relationship can be changed only by petition to the court. Ideally, you’ll be able to reach an agreement with your ex-spouse to establish temporary measures in the best interests of your children. If you can’t mutually agree and must ask the court to intervene, the court likely will give significant weight to the fact that the requested change is temporary. Absent some showing that a permanent change is in the best interests of the children, the court won’t make a permanent change.
At the law office of Bailey & Galyen, we offer a free initial consultation to every client. For an appointment with an experienced Texas divorce and family law attorney, contact us by email or call or call us at 844-402-2992. We will take your call 24 hours a day, seven days a week.
