A Guide for Divorced Parents on COVID-19

A Guide for Divorced Parents on COVID-19

COVID-19 & Extended Spring Breaks

As more and more local schools announce that they are extending Spring Break in response to the global novel coronavirus pandemic, parents are asking how will the extension of Spring Break affect their rights under existing possession orders.  The short answer is that there is no definitive binding legal precedent addressing this particular situation.  While some local family court judges have posted informal opinions on social media, these informal opinions offer little more than guidance as to what that particular judge is thinking at that point in time and are not binding legal authority.  Some courts may yet choose to address this unique problem with a standing order but, until then, parents may wish to consider the following advice.

What does the standard possession order say?

The Texas Family Code contains the following provision in the “Standard Possession Order”:

[T]he possessory conservator shall have possession in even-numbered years, beginning at 6 p.m. on the day the child is dismissed from school for the child’s spring vacation and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in odd-numbered years.

A legal argument can be made that the length of “the child’s spring vacation” is indefinite, so the possessory conservator would continue to have possession of the child until school resumes.  On the other hand, a legal argument can be made that “the child’s spring vacation” means the period set at the beginning of the school year by the school for spring vacation, and that additional school closures due to the COVID-19 outbreak are not part of “the child’s spring vacation.”

The exact language of the “Standard Possession Order” may or may not appear in every single possession order.  Parties and attorneys often customize this language for their own particular situation.  It is very important to consider the actual specific language of your particular possession order.

Will I be held in contempt if I keep my child?

One legal method of enforcing a possession order is filing a motion for contempt.  A party may be held in contempt of court for willfully violating a court order.  Usually, to hold a party in contempt, the party’s obligations under the court order must be clear and unambiguous.  An ambiguity may be patent or latent.  A patent ambiguity exists when the language of the court order as written is reasonably susceptible of more than one interpretation on its face.  A latent ambiguity exists when, even though the language of the court order is facially clear, that language may be reasonably applied in materially different ways to a particular set of facts.  A fair argument can be made that the typical language for Spring Break possession is ambiguous under the extraordinary circumstances created by the COVID-19 outbreak, meaning it cannot be enforced by contempt.

Courts have considerable discretion enforcing their orders.  It is not uncommon for family courts to refuse to hold a parent in contempt if a parent gives a reasonable explanation.  While each family judge is different, it would not be surprising for a family judge to exercise restraint in exercising its contempt power under the unusual circumstances of this outbreak.

What about a writ of habeas corpus?

Another legal way of enforcing a possession order is filing an application for writ of habeas corpus.  Such a writ is available if the other parent is “illegally restraining” the child.  You absolutely have the right to seek such relief.  You’ll pay a lawyer, and you may or may not get the result you want depending on the language of your order, your judge, and the facts and circumstances of your particular case.  You may or may not receive an award of attorney fees and travel costs if it was necessary for you to travel to regain possession of your child.  You may or may not be able to have a quick hearing on your application for writ of habeas corpus.

Do I have any recourse if the other parent keeps my child?

You can also file a motion for clarification or modification of your possession schedule.  It is almost certain you will not have a quick hearing on such a motion.  In most cases, a child’s spring school vacation has historically consisted of two consecutive weekends and the intervening weekdays.  It is reasonable to conclude that is what the legislators had in mind when they drafted the standard possession order language for Spring Break, and it is reasonable to conclude that is what the court and parties had in mind.  Does it make sense that one parent should receive a windfall of an additional week, or weeks, of possession because a school has told children not to return to class due to the outbreak of an infectious disease?

If a parent keeps the child for additional time under such circumstances, isn’t it reasonable that the court may make some adjustments in near-future possession periods to compensate the other parent for the windfall?  Wouldn’t a near-future period of possession be this year’s summer possession?  Couldn’t a rational and reasonable argument be made that the parent keeping the child for the extended Spring Break time ought to give up a corresponding period of his or her upcoming 2020 summer possession to the other parent?

Can I force the other parent to keep my child?

If you work, you may want the other parent to keep your child.  Practically speaking, you may not be able to legally force the other parent to keep the child.  There is no “reverse” application for writ of habeas corpus.  Reasonably, if there were no outbreak, your child would have been returned to you after a typical Spring Break.  If there was school closure due to an unforeseen event at a random time during the school year, you would likely have had the responsibility to provide for your child’s supervision.

If you incur additional unexpected child care costs, you may be able to seek a modification of your support order, especially if the school closures continue for an extended period of time.

So, what should I do?

Talk to the other parent.  The sudden extension of school closures due to the COVID-19 outbreak is a difficult and extraordinary circumstance that wasn’t contemplated when your possession order was made.  Family court judges understand that.  It is likely that they will not look favorably on parties who use this public health emergency to escalate high-conflict custody litigation.  It doesn’t matter how much you despise or hate the other parent.  You love your child.  Consider the facts and circumstances of your particular situation and what your particular school is doing, and try to come to an agreement.

Write it down.  This is not a sign of mistrust or an attempt to pull a “gotcha.”  Writing down your agreement helps to insure that both of you have a clear meeting of the minds as to what your agreement is, and helps to highlight details that may not be immediately apparent in a verbal discussion of the situation.

Ask yourselves “what if?”  What if school doesn’t resume for several weeks?  What if school doesn’t resume until summer when we would normally have summer possession?  What if one of us has to travel out of town during the school closure?  What if one of us, or our child, gets the disease?

Of course, if you need legal assistance addressing your particular situation, do not hesitate to contact one of the family law attorneys at Bennett, Weston, LaJone & Turner, P.C.

2020-03-13T11:06:10-05:00March 13th, 2020|Business Law, Business Litigation|
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