Good question! In our great state of Texas, it seems this question comes up about once a year and then is forgotten until the next ice storm or snow day. The possession schedule for the kids between separated, divorced, or non-married parents get thrown into chaos. Oddly enough, the Texas Family Code has no rules for this predicament and most orders and decrees don’t cover it either. It’s left for interpretation and that is normally a recipe for disaster and calls to the lawyer’s office. The solution is hopefully two parents that can use common sense and logic to get through the 2 or 3 days a year when it comes up – but the majority of times it is a tug of war for possession and the mythical tenet of law everyone embraces of “possession is 9/10’s of the law” prevails.
1. What the law says. The “law’ is going to be what is written in your Decree of Divorce or Order governing possession. The return or surrender time for parents to exchange the children is either going to be 6:00 p.m. on a Sunday or when the kids resume school on a Monday. Most decrees and orders of possession cover the traditional holiday or teacher training day and will spell out who keeps the children on that Monday or Friday off day for the kids from school. But when the inability to return the children at the designated hour is caused by weather, other natural disaster, or sickness of the child, then a close reading of those court-ordered possession schedules will yield no definitive answers. School never resumes on the Monday snow day so the parent in possession will argue they don’t have to return the kiddos until it does resume. The out of possession parent will argue that the other’s possession time ends at the time school resumes and therefore that parent should return the kids back to the parent entitled to possession. Who is legally entitled to “possession” of a child during school? Totally gray area. Most judges and lawyers, I believe, will concede that the intent of any possession order is to have set times for the start and ending of possession for parents who live apart from one another. The “intent” of a possession order done under the Family Code is for the parent in possession of the children on a weekend or weeknight and who is to return the children at the time school “resumes” should turn over possession to the parent not in possession at that designated time – whether school is closed due to weather or child sickness. However, most decrees and orders don’t say that specifically.
2. How the problems should be handled. First, common sense and safety for you and your children should rule the thinking process – not how do I one-up my ex by holding onto the kids for another day. Children thrive on routine and most judges and mental health experts will advise that you should stick to that plan as much as you can. So, if the roads are really icy and unsafe, keep the kids. Wait till it gets better and there aren’t cars and semi-trucks spinning out on every major road and overpass. When it clears, get the kids back to the parent who is supposed to have possession as soon as possible and get them back into their routine. Second, get your order fixed right. We are now putting into orders we prepare provisions for “snow days” to govern these circumstances. We are legally defining who has the right of possession when schools are closed for reasons other than prescheduled holidays and in teacher service days. We are also drafting provisions that give the out-of-possession parent the right to go to the parent who is claiming the roads are too hazardous and get the kids and bring them back to their house. We are putting into legally enforceable orders what the “intent” has always been. When finishing your divorce, modification, or other parenting plan order, make sure your lawyer addresses this issue. It can save a lot of angst and anger when that “northern” blows in more than just cold air.
Making a snowman with your kid is a great experience and a memory every parent would love to make, but don’t use it as an excuse to ignore your larger obligation of teaching your children responsibility, cooperation with their other parent, and how adults handle adversity and emergencies.