They say life is unpredictable, but no one saw 2020 coming. As schools, stores, and businesses began to shut down, and lockdown orders took effect, many divorced families began to wonder what would become of their custody and visitation orders.
Now fast forward a year. With vaccines rolling out across the globe, and what might just be a faint glimmer at the end of this dark tunnel, families are turning to a new worry:
What happens now?
In this article, we’ll be talking about child custody after COVID, what the Supreme Court has to say about your parenting plan, and what your family needs to know about returning back to society’s new normal.
Custody and COVID
The 2020 COVID pandemic was unprecedented for our time, and we won’t lie—it was unprecedented for family law attorneys, too.
With the introduction of this novel virus, legislatures had to adapt—and fast. And in Texas, that meant clarifying rules that were already set down by the Texas Family Code.
Child Custody in Texas
Here in Texas, child custody laws are driven by a child’s best interest. Under these guidelines, custody and visitation schedules are determined—not by what the parents want—but according to what the court believes will serve a child’s long-term health and happiness the best.
To figure this out, the court weighs a number of independent facts against one another, to figure out the best fit. These factors include things like:
- The child’s age and preference;
- The child’s physical and emotional needs (both now and in the future);
- Each parent’s past parenting role;
- Each parent’s ability to care of their child, post-divorce; as well as,
- Any history of abuse or neglect.
In addition, Texas courts have long held that a child’s best interest is served when allowed to have a relationship with both parents whenever possible (which, as a point in fact, is why they so often favor joint custody arrangements).
While this is all well and good when everyone is healthy, do parental rights still hold up when there’s a pandemic sweeping over the United States?
According to the Texas Supreme Court: yes.
COVID-19 and the Texas Supreme Court
In March, 2020, the Texas Supreme Court issued the first of many emergency orders. This one directly addressed child custody, and clarified that a parent’s right to possession of and access to their child would:
“…not be affected by any shelter-in-place order issued by a government entity, [which] arises from an epidemic or pandemic, including what is commonly referred to as the COVID-19 pandemic.”
In layman’s terms: you still have to uphold custody obligations, even during a pandemic.
The court further clarified that all COVID-related custody disputes were to be governed by the parenting plan contained in the couple’s original divorce order.
But What if I Suspect My Ex Has COVID? (Or is At Risk of Getting It?)
The Supreme Court of Texas doesn’t take parental rights lightly. They’ve made it clear that a virus doesn’t affect these rights, and hence, any failure to comply with court-ordered visitation comes with a risk.
By not complying, you are giving your child’s other parent the right to file a motion to enforce. If the court finds that you are willfully violating an order, it won’t look good for you, and may even affect your own custody rights under the order.
Consequences for failing to uphold the terms of an order can result in hefty fines, a charge of contempt, civil liability, and even jail time. (And we’re guessing kidnapping isn’t a charge you want on your record, what with everything else going on right now…)
That being said, the court is also obligated to assess child custody under the scrutinizing lens of a child’s best interest. So, if it really isn’t in your child’s interests to be out and about collecting invisible germs (because, say, they have a preexisting health condition), you may want to consider voicing your concerns to the court, and asking for a temporary order.
Keep Good Records
No matter which side of the dispute you fall on, be sure to document your interactions. Keep track of the dates and times of visitation attempts. Take screenshots of text conversations. Save your emails. Have the child’s medical records on hand. File a police report (if necessary), and keep your family law attorney in the loop.
Above all, however, remember that we’re all going through this together.
If at all possible, try to work with your ex, instead of against them. Keep an open line of communication, be respectful, and think outside the box for unique solutions (such as virtual visitation). In these difficult times, compassion for your child’s other parent might just be the single most effective tool for getting your family through this crisis.
What Happens After COVID?
Over the past year, health directives have altered work schedules, changed school times, and put many people out of a job. These financial, health, and emotional roadblocks can impact custody and child support arrangements, even under the best of circumstances. During a worldwide pandemic, however, these hurdles can quickly become monumental.
If you haven’t already, start by reviewing your existing custody arrangement, to see where things stand in your family. Ask yourself if the original parenting plan still works in light of your child’s modified school schedule… your newly acquired work-from-home position… or the child care arrangements you had to make.
As with everything in a divorce, couples are always free to make these arrangements on their own. Modification can be hammered out between individuals, or through a more formalized process, such as mediation.
Keep in mind, however, that nothing will be enforceable until your judge signs off on the modifications—even if you both agree to them.
Child Custody Attorneys in Texas
Hopefully, we never have to deal with a virus-like COVID again. If we do, however, then the silver lining is that we already have a good idea of how the court will handle child custody.
If you have more questions about child custody after COVID, and what measures you should be taking, we want to hear from you. Call the Neal Ashmore team today at (972) 436-8000, or schedule a consultation online, and let us help you through these unprecedented times. (Because none of us have heard that word enough yet, right?)