Although Texas continues loosening it's restrictions on local business, the state is experiencing it's highest infection rates both in the number of tested cases and in the number of Texans hospitalized due to COVID-19. Many Texas parents are asking - during this crisis do I have to exchange my child for summer visitation?
July 1st- Expanded Summer Possession Order
With talk of a second wave of illnesses across the country, some municipalities are thinking of re-introducing social distancing restrictions. At the same time, July 1 is coming quickly. For thousands of Texans under a Standard Possession Order, this is the first day of the non-custodial parents' time for their expanded summer possession period. The non-custodial parent is the parent who the child or children do not live with on a day to day basis. Under the standard possession order, which is the custody arrangement most Texans have in their court orders, the parent who the child does not live with gets a 30 day period in the summer. Unless a different time frame was communicated back in April, the default period begins July 1 and ending July 30. However, with the ongoing coronavirus threat - which seems to be growing daily- some parents are wondering if they have to exchange the child on July 1.
Violation of Your Order
The answer is, that unless the court has specifically changed your custody order, you still must do what your current visitation order says. Neither the coronavirus threat, nor any shelter-in-place orders by local government will automatically change your custody orders.
In fact, the Texas Supreme Court issued an order (https://www.txcourts.gov/media/1446470/209059.pdf) that expressly states:
"Possession of and access to a child shall not be affected by any shelter-in-place order or other order restricting movement issued by a governmental entity that arises from the pandemic." (The Supreme Court of Texas, Misc. Docket No. 20-9059, Twelfth Emergency Order Regarding the Covid-10 State of Disaster, dated April 27, 2020).
So, no matter what you hear, or how you feel about the pandemic, if you do not follow your custody order as written, you may face civil or even criminal contempt penalties.
Modify by Agreement
However, if both parents agree that now is not the time to have an extended summer possession period, then in most cases, they can agree to change the possession times this summer. Most standard possession orders allow parents to change visitation by agreement. Just make sure that you review the terms of your order and make sure that any agreement to deviate from the court order that you make with the other parent is documented in writing. This is to protect you by making sure there is no miscommunication or later accusations that there was no agreement.
Modify by Court Order
But what if the other parent does not agree to modify the possession order this summer? The only way to avoid getting yourself into trouble with the law is to file an emergency request with the court to modify the order BEFORE July 1. In it's order, the Texas Supreme Court has stated that this is an option open to parents:
"Nothing herein prevents …courts from modifying their orders on an emergency basis or otherwise." (Id.)
However, if you wait until after June 30 to file your request, you will already be in violation of your custody order at the time you file it, and your chances of it being approved decrease and your chances of being found in contempt of court for violating the existing order increases.
If you are in this situation, you should consult an attorney immediately to file the appropriate paperwork before the June 30 deadline.
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Attorney Sean Y. Palmer has over 20 years of legal experience as a Texas Attorney and over 25 years as a Qualified Mediator in civil, family and CPS cases. Palmer practices exclusively in the area Family Law and handles Divorce, Child Custody, Child Support, Adoptions, and other Family Law Litigation cases. He represents clients throughout the greater Houston Galveston area, including: Clear Lake, NASA, Webster, Friendswood, Seabrook, League City, Galveston, Texas City, Dickinson, La Porte, La Marque, Clear Lake Shores, Bacliff, Kemah, Pasadena, Baytown, Deer Park, Harris County, and Galveston County, Texas.