As Covid-19 spreads throughout the United States, life has changed so rapidly and in so many ways that a lot of families are left wondering how to adapt to this new lifestyle. Schools have extended spring break vacations or cancelled in-class sessions for the remainder of the semester to minimize the spread of the virus to their students. Custody orders exist for giving the parties direction when they can’t come to an agreement amongst themselves. So many people, though, depend upon a clear, unambiguous order to give them direction on what they can and can’t do because there’s no hope of an agreement with the other party. So, what do people do when the world is changing on a daily basis and balancing the health and safety of one’s child must be balanced against another parent’s rights?
Co-parenting under normal circumstances is difficult enough but add in a global health crisis and it seems like a recipe for disaster. Parents who are normally able to co-parent may find that now there’s an issue with communication because of fear and/or panic by one or both parents. Parents who could never co-parent before may experience a meeting of the minds for the first time as they prioritize the safety and wellbeing of their child as paramount.
Courts at all levels have attempted to keep up as schools and governments make changes to address the rapid spread of the Coronavirus. The Texas Supreme Court has stepped in to assist with clarifying some of the various common issues that have arisen regarding possession schedules. For instance, the Texas Supreme Court issued an emergency order on March 17, 2020, clarifying that all parties with a possession order were to continue to follow those orders as if the children’s school was still in session. This helped to clarify the differentiation between the school “extending Spring Break” with whether the non-custodial parent was able to maintain possession of a child until school resumed. As various cities and counties have instituted “shelter in place” policies, the Texas Supreme Court once again issued an emergency order on March 24, 2020, that again clarified that these policies did not affect a parent’s right to possession of a child under their court order.
While the courts have been able to provide guidance on the effect of this global crisis on possession orders, there is little to no guidance on how to balance a parent’s right to possession with the mandates regarding quarantining. All too often people forget that the conservatorship rights and duties include the duty to provide information to the other parent and that other parent’s right to receive information. And what about a child’s right to convalesce rather than bounce around from house to house because of a custody order?
If a child is running a high fever and coughing, the other parent not only has a right to know about those conditions, but there should be a conversation about whether it is advisable to remove the child from the home in which those symptoms began for purposes of a court-ordered period of possession. Neither parent should receive a windfall of time with a child as a result either of a global crisis or a child’s illness, but the child’s needs should always be first priority. When in doubt, the recommendations of professionals should always be followed with as much deference to the rights of the other parent as possible. Make sure to document all communication with the other parent so that you can establish all efforts to keep him or her informed of the child’s progress and status. If a child is required to be quarantined, the other parent should receive frequent electronic communication with the child to supplement the time that they would have otherwise received and make up possession time once the child is fully recovered should be discussed. If possible, a timeline of when custody exchanges can resume should be set and modified as needed so that the other parent can plan appropriately.
Bear in mind that, while desperate times call for desperate measures, judges can tell when a party is attempting to take advantage of a situation. Because the highest state court has already established that each party is to continue to abide by their court-ordered possession schedule, it’s important that each party do whatever they can to ensure compliance with all aspects of their court orders. However, compliance with the court’s orders doesn’t begin and end with the possession order and the courts first priority is to protect the best interest of the child. This crisis, as all others before it, will pass in time. The hope is that parents will find a way to work together to ensure that their children’s health and safety are not further collateral damage of this pandemic.
