Custody during COVID

The Texas Supreme Court has issued a new Emergency Order, number 26, on September 18, 2020. It goes into effect October 1 and extends many of the provisions of prior orders. These Orders must be followed by all courts in Texas until they expire or are modified by another Order.

Specifically for Custody, the Texas Supreme Court’s order states:

“In determining a person’s right to possession of and access to a child under a court ordered possession schedule in a Suit Affecting the Patent-Child Relationship, the existing trial court order shall control in all instances. Possession of and access to a child shall not be affected by any shelter-in-place order or other other restricting movement issued by a government entity that arises from the pandemic. The original published school schedule shall also control, and possession and access shall not be affected by the school’s closure that arises from the pandemic. Nothing herein prevents parties from altering a possession schedule by agreement if allowed by their court order(s), or courts from modifying their orders on an emergency basis or otherwise…this Order expires December 1, 2020.”

This means that if you already have a court order in place then you need to follow that schedule. If your court order says visits start when “school begins” or when “school ends” then you need to follow the the published school schedule for when school starts and stops. Judges are undecided on those Fridays under an expended standard schedule. Should a non-primary parent have the ability to home-school at their house on the Friday instead of dropping off back to Primary parent’s house for the “school day” and picking back up from primary parent at the end of the “school day”? Your Order’s specific language is going to be key in this situation. Review it and see what says to make sure you are following it as best as possible.

Parents are strongly encouraged to cooperate and assist each other. The last lines of the Order says that. Judges in the central Texas counties have strongly stated that if one parent steps up and starts helping but then uses that as a reason for a future modification (or child support change) once COVID fears have subsided, the Judge will not look favorably on that parent. They want parents to help each other without fear of it being used against them later. For Example; if a Mom can’t stay home and has to go into work and Dad steps up and does the home schooling/virtual learning because his schedule can handle that, then Dad tries to later cancel child support or change custody based on the kids being with him every school day during the Fall, the Judge is not going to be impressed by that. This is an unprecedented pandemic and Judges are expecting parents to pitch in and help each other for the good of their children. We’re going to have to get to the other side of this and then take stock of what’s the new “normal” schedules for the kids before filing modifications.

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