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For several months, Houston residents have been subject to various “stay at home” orders intended to slow the spread of SARS-CoV-2, which causes the illness known as COVID-19. This has caused an enormous amount of stress on families for many reasons, such as school closures that have caused parents to become homeschool teachers overnight, and difficulties sticking to a parenting plan or child custody order. The pandemic offers Texas parents an opportunity to revisit their parenting plans, either informally or through the courts. Even though the restrictions related to the pandemic are loosening, public health experts warn that those restrictions may become necessary again if the number of COVID-19 cases spikes again. Parents should consider alternate plans for certain events, such as limitations on travel or the need to go into quarantine. They can move a court to modify a child custody order, or they can work on an agreement between themselves.
Under Texas family law, if parents have a court order regarding child custody that includes the Standard Possession Order (SPO), they can agree to different terms than those found in the order. This is meant, in part, to give parents flexibility to deal with real life. If a child has an event or activity that conflicts with one parent’s weekend period of possession, the parents can agree to switch weekends to allow for that. The SPO controls when the parents cannot agree on different terms.
As long as parents agree to a different possession and visitation schedule, they do not need to have their custody order modified by the court. This assumes, of course, that the parents will maintain an amicable relationship until their children reach age eighteen. As wonderful as that sounds, it is always good to have a backup plan just in case. A Texas court can modify a child custody order if the party seeking the modification can show that the circumstances of the child, one or both parents, or another person closely involved in raising the child “have materially and substantially changed.” This can be a difficult burden of proof, but some of the changes brought by the pandemic could meet that burden.
Texas maintains as public policy that children should have “frequent and continuing contact” with their parents, provided that the parents have demonstrated that they can “act in the best interest of the child.” Children are entitled to “a safe, stable, and nonviolent environment” under Texas law. The “best interest of the child” should always be the first consideration when reviewing a parenting plan. A pandemic could cause situations where access to a quarantined parent, at least in person, is not safe, and therefore is not in a child’s best interest.
Joint managing conservatorship is the term used in Texas family law for parents with roughly equal rights and authority regarding the care and raising of a child. Each parent has the right to consult with the other regarding medical decisions and other matters.
As far as public health officials know so far, SARS-CoV-2 does not have as much of an impact on children as it has on adults. Children who may have been exposed to the virus are still expected to go into quarantine, which places a significant responsibility on the parents. It also affects custody rights and visitation schedules. While the Texas Supreme Court has stated that custody and visitation orders will not change during the pandemic, a quarantine recommendation or order could create a practical need to modify visitation.
An obligation to pay child support usually includes medical and dental support. This could involve including the child or children on any health insurance plan offered by the obligor’s employer. It may also involve the obligor paying for the child’s out-of-pocket medical expenses or the parents splitting responsibility for those expenses. Parents should consider possible medical expenses related to COVID-19 that could affect them or the child(ren).
Each family has unique needs and concerns related to the pandemic. If a child or one of the parents must go into quarantine or isolation, that will inevitably affect custody and visitation. If the parent going into quarantine is also the child support obligor, that can affect their ability to pay on time. Regardless of the obligor’s circumstances, their support obligation will remain unchanged.
Certain underlying health conditions, including asthma, diabetes, obesity, kidney disease, and cancer appear to increase the risk of serious complications and death from COVID-19. Even with the gradual reopening of businesses in Houston and throughout Texas, people who are at greater risk may continue to observe precautions like staying at home as much as possible and practicing social distancing. The other members of the family should plan on following safety precautions as well in order to protect those who are more vulnerable. This means that if one parent has underlying health conditions, the other parent should make sure that the children take precautions to avoid passing the virus on during a period of possession or visitation.
Houston has not experienced the kind of restrictions on travel seen in other areas. Most stay-at-home orders instructed people to stay in their homes except for certain essential functions, but enforcement was uneven. Those orders often included transporting children for the purpose of parental visitation in the list of “essential” activities. This assumes, of course, that children can travel from one parent’s home to the other by car within the Houston area.
Stricter travel regulations are certainly possible if the pandemic worsens. Air travel has been restricted, either officially or simply because fewer people are flying, since at least March. Parents with custody and visitation schedules that require air travel have already had to adapt. Parenting plans should at least consider contingencies that involve travel restrictions. The impact of hurricanes on Houston provides a useful analogy, since they render highways unusable and travel by other roads difficult if not impossible.
Texas courts are scheduled to begin reopening on June 1, 2020. Going to court to modify a custody order might not take much more time than it normally would. Parents should not rush to the courthouse, however, if they believe there is any chance of reaching an agreement on the parenting plan. An experienced family attorney can help with negotiations, and many mediators are available to assist parents in finding common ground. “Virtual” mediation using videoconferencing technology is also possible.
Board-certified family lawyer Stacey Valdez advocates for people in the greater Houston, Texas area who are dealing with profoundly difficult ordeals like divorce and disputes over child custody. As a client at Stacey Valdez & Associates, you and your family will always be our top priority. We are committed to representing our clients with tireless advocacy, compassion, and dignity. Please contact us today online, or give us a call at (713) 294-7072 to schedule a confidential consultation to discuss your case. Your first meeting with us is free in most situations.