Updated: Mar 25, 2020
*This blog is being constantly updated with the most recent and available information, but please call and speak to an attorney for help prior to making any decisions due to the constantly changing legal landscape during the Covid-19 (coronavirus) Pandemic.
During the coronavirus pandemic, families everywhere are asking "How long do I keep my kid?" and "What if the other parent doesn't return our child?" Courts and attorneys have worked to come up with solutions and answers as the situation evolves.
On the evening of March 24, 2020 the Texas Supreme Court issued its seventh emergency order. This order makes it clear that in Texas, exercising possession and access of your child is an essential activity, as is the travel for any exchanges of the child. Austin's Stay Home -- Work Safe Order does not give a parent the right to fail to surrender or to fail to return a child pursuant to an underlying custody order. Follow your child custody orders as written. If the other party fails to comply, be sure to follow the advice of your attorney and document each instance in which you are denied possession and access of your child. If you do not have an attorney, please contact our office if you need legal assistance.
On March 24, 2020 a Shelter In Place order has been issued for Travis County (Austin, Round Rock, Pflugerville, Texas etc.) and Williamson County (Austin, Cedar Park, Leander, Georgetown, Liberty Hill, Pflugerville, Hutto, Texas etc.) which goes into effect at 11:59 p.m.
Exchanges of children per a court ordered custody agreement is considered essential travel. Governments are asking parents to try and come to other agreements that minimize travel, but that's not always possible for every co-parent. As it stands, if you and members of your family are not positive for COVID-19, there is nothing about a Shelter In Place order that will change the way you handle your child custody schedule. Continue to follow your order exactly as it's written. If the other party fails to comply, be sure to follow the advice of your attorney and document each instance in which you are denied possession and access of your child.
However, if you, your child, your child's other parent, or a member of either of your individual households are positive for COVID-19 (coronavirus), or have COVID-19 symptoms, please contact your family law attorney or our office to discuss what this means for your child custody issues.
During the coronavirus pandemic, families everywhere are asking "How long do I keep my kid?" and "What if the other parent doesn't return our child?" Courts and attorneys have worked to come up with solutions and answers as the situation evolves. On March 17, The Supreme Court of Texas issued an Emergency Order detailing how the COVID-19 outbreak will affect possession schedules. All courts in Texas must follow the Supreme Court's order. All cancelled school days are being treated as simply that - these are not holidays, vacation days, or in-service days. Parents are expected to follow the official school calendar and continue their exchanges as normal during the school year. Check your court order and follow it closely. For example, if you are required to return the child from spring vacation to the other parent at 6:00 p.m. at their residence the Sunday before school resumes, then you would return the child on the Sunday prior to when school would have resumed after spring break according to the school calendar - whether classes are cancelled or not. If your order requires you to return the child to school, then you would exchange the child with the other parent at the place designated in your order for non-school exchanges. Almost all possession and access orders include exchange terms for when exchanges at school are not possible. This information can often be found in the "General Terms and Conditions" section of the order, towards the end of the possession and access schedule. If you have questions, be sure to contact your attorney. There have already been issues in counties all over Texas regarding parents failing to return the child after spring break or failing to surrender the child for spring break. These incidents are being taken extremely seriously by judges. Willingly refusing to return or surrender the child in accordance with your possession order will be treated as contempt of court. You will likely face one, more, or all of the following consequences: be jailed, be put on probation, be forced to pay a substantial fine, be forced to pay the other parent's attorneys fees. Many parents have already faced these consequences. Judges are issuing writs of habeas corpus and writs of attachment in such cases as applicable. A writ of habeas corpus is a legal tool that removes a child from one parent's custody when they are in unlawful possession of the child - i.e. refusing to follow the possession order. A writ of attachment does something similar, except the Court will issue this particular writ when there is an element of possible immediate harm to the child. Of course, none of this is to say that new agreements or arrangements cannot be made. The Supreme Court of Texas has permitted changes of possession and access orders by agreement of the parties, if the order allows it. Check your order carefully before seeking alternate arrangements. If you are not currently represented by an attorney, you'll want to discuss any changes in writing, preferably through a co-parenting app such as AppClose or Our Family Wizard or through email or text message. If you are represented by an attorney, consult with them about creating a Rule 11 Agreement that provides for a change of the order during the COVID-19 pandemic that suits your family if you and your co-parent are in agreement or need help coming to an agreement.
The State Bar of Texas has also issued the following orders, listed below:
· The first order empowers Texas courts to modify or suspend certain deadlines and procedures, allow parties to participate remotely in proceedings, and take other reasonable steps to avoid exposing court proceedings to the threat of coronavirus.
· The second order applies to and clarifies possession schedules in Suits Affecting the Parent-Child Relationship.
· The third order amended the original order to establish court proceedings that may be conducted away from the court’s usual location with reasonable notice and access to the participants and the public. The change omits reference to the county-venue limitation in the original order.
· The fourth order supplemented the three previous orders, addressing hearings, trials, and deadlines for residential-property evictions.
· The Office of Court Administration has released updated guidance on court procedures for the coronavirus. You can read the guidance here.
· The seventh order makes it clear that parents are required to continue following their custody orders during any Shelter in Place orders anywhere in the State of Texas. Exercising possession and access is an essential activity under ALL Shelter-In-Place orders in the state of Texas as is the travel required to exchange the child with the other parent.
The goal for all families is to keep them safe and stable during these uncertain times. At any time, the rules of the game may change, and this very post may be changed to reflect that. Make sure to contact an attorney like us to obtain real time help. Keep following your possession and access order as it's written, but don't hesitate to contact an attorney for legal advice if you're unsure about what to do. We're here for you.