Article Featured in Dallas Bar Association Headnotes, September 2021
The coronavirus pandemic has not only impacted 34 million people in the United States alone, but it has also upended the way millions of former couples co-parent their children.
Governor Abbott’s first orders regarding the shutdown went into effect on March 20, 2020, just as many school districts in the State were out for the Spring Break vacation. This led to much confusion and chaos for both parents and family law attorneys especially when it came to possession schedules in these trying times.
Possession Schedules and School Schedule Changes
Pursuant to the Texas Family Code’s Standard Possession Schedule, which most orders adhere to at least for the holiday provisions, states that the 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 school’s spring vacation and ending at 6 p.m. on the day before school resumes after that vacation…” Tex. Fam §153.312. Before Texas schools completely shut down and went to online learning for the rest of the school year, many districts in the Dallas area simply stated that they would be extending the school’s spring break period. This led to many possessory parents asserting that they would get to keep the children for the extra week/s due to the extension of the Spring Break period. Reading the code literally, they were correct. This problem led many primary parents to the courthouse on emergency motions demanding that the possessory parent hand over the child. Pretty soon, most courts issued advisory opinions stating that parents should follow the schedule as if there were no pandemic and the school calendar were not changed.
Exposure to the Virus
Another issue that parents and courts faced was whether a parent should or could be ordered to hand over a child for a possession period when the child or family members had been exposed to the virus. For the most part, courts found that the parent receiving the child should make that choice. Many parents live with immunocompromised relatives or were in a high-risk category themselves, and oftentimes chose not to exercise visitation periods for various reasons. For the most part, courts have not held a parent not exercising a visitation period due to the pandemic against them in subsequent court actions.
The Effect on Front Line Workers
As the pandemic led many parents to work from home remotely, it also affected front-line workers and their ability to exercise the possession schedule as previously ordered. Many healthcare workers had mandatory overtime requirements and could not exercise their possession periods. This led to many modifications either through the courthouse via Zoom hearings, or by agreements. For the most part, possessory conservators who were also front-line workers were able to designate their 4-6 weekend days in advance on any day of their choosing that month. For instance, if the front-line worker had a standard possession schedule normally, depending on if that month had 4 or 5 weeks, they would be able to designate their 4 or 6 possession days in advance. Those days would not need to be on weekends necessarily. This gave front-line workers more flexibility to be able to both work and see their children consistently.
Parents Living Long Distance
For parents who reside long-distance, the pandemic created problems with travel as most airlines shut down or drastically reduced the number of available flights. Additionally, many parents did not want their children in public spaces such as airports and commercial airplanes. Many possessory parents who lived long-distance to the primary parent chose, or were ordered, to have an extended summer period or holiday period in lieu of their monthly weekends.
As Texas schools were opening back up to in-person learning, some parents had a choice of remote learning from home or coming back to in-person classrooms. Family law practitioners received frantic calls from parents that were not in agreement with the choice.
Lastly, the issue that likely affected most parents is that they were working from home at the same time their children were at home learning remotely. On the flip side, if a parent was not working remotely and the children were learning remotely, many children were left alone during the day. Many parents who resided near each other chose to form co-ops where they would take turns teaching all the children 1 day a week or one subject. Therefore, despite being online, the kids would all have supervision during the day. Also, many parents chose to supervise their children during the day and work off hours. As school districts were able to ramp up the online learning content as the months of Zoom learning continued, parents were able to work while their children were in the online classroom.
These have been truly trying times for everyone, especially for parents of school-age children trying to co-parent during the pandemic and the family law attorneys guiding them the best we can.
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