The Texas Supreme Court issued an order April 27, 2020, in effect until July 15, 2020, saying that for determining a person’s right to possession of and access to a child under a court-ordered possession schedule, the existing trial court order controls in all instances.
Family Law experts from Lone Star Legal Aid’s Justice for Crime Survivors Project and Legal Assistance to Survivors of Sexual Assault team joined forces and prepared answers to the most common COVID-19 family law related questions they receiving right now.
My child’s other parent and I have shared custody under a current order, but now there’s a stay-home order in place. Can I keep my child home with me until the stay-home order is lifted, or do we still have to do visitation exchanges?
The Texas Supreme Court has ordered that despite stay-at-home orders, existing court orders concerning possession and access shall control in all instances. 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 COVID-19.
Some parents who were entitled to spring break possession under a court order did not return the children at the end of the spring break week, as schools didn’t reopen their doors.
The Texas Supreme Court also addressed this issue saying that the original published school schedule shall control in all instances and that possession and access shall not be affected by the school’s closure that arises from COVID-19.
But I don’t feel that it’s safe for my child to go to the other parent’s home right now. What can I do to stop the visitation until it’s safer?
While the Texas Supreme Court has ordered that possession schedules remain in place during COVID-19, a parent still has the right to request a modification of the possession schedule based on a material and substantial change in circumstances and that the new order would be in the child’s best interest.
The law presumes it is best for a child to have ongoing contact with both parents. If a parent is seeking to completely stop visitation with the other parent, there must be strong evidence to show the denial of visits would be in the child’s best interest.
Any restrictions must be limited to only what is needed to protect the child’s best interest. A complete denial of access to a parent is rare and only for extreme situations. The concerned parent should try to get an agreement with the other parent to temporarily limit the in-person contact and offer additional make up time with the child once the concern for COVID-19 has subsided.
If a parent feels the child’s safety is at risk, then a parent should file a Petition to Modify the Parent-Child Relationship. In some circumstances, an affidavit may be required along with the petition. The court may make an emergency temporary order suspending visits until a hearing can be held.
If a parent decides to withhold a child from the other parent in violation of a court order, then the parent could be found in contempt of court for withholding the child, and if the violation of the order is shown to be willful, then the parent could be subjected to incarceration, community supervision, and fines.
My child’s other parent isn’t letting me have my child when it’s my time under the order. What can I do?
You must have made an attempt to visit the child that failed because the child was not made available by the other parent. Being informed that you are not allowed to visit solely in a text message or in a telephone call is not considered being denied a visit. Therefore, you should make sure to follow the exact terms of the order by being in the place described in the order, on the date and time provided in the order.
Once you have made an attempt to exercise your possession and been denied, then you can file a motion for enforcement and contempt. You can ask the court to order make-up visitation. You can also ask that the withholding parent be held in contempt by the court, which may include being ordered to pay fines, attorney fees, and even ask that the withholding parent be put in jail for violating the order. Be aware that if you ask that the other parent be put in jail as punishment for violating the order and that parent is indigent, then the Court will appoint an attorney to represent that parent.
My child’s other parent has supervised visitation, but the visitation center is closed. The other parent is trying to tell me that I have to let my child go unsupervised. Do I?
The general rule is that court orders must always be followed. Due to the pandemic-related closings, you and the child’s other parent may decide to mutually agree on another location or supervisor on a temporary basis. This agreement should ideally be made in writing, via email or text message. Any permanent changes to the visitation arrangement would require court intervention.
I’m supposed to pay child support, but I just got laid off. What should I do?
Your child support obligation does not stop because you were laid off or your work hours have been reduced due to COVID-19. Only a court order can change child support terms, so it is important to continue paying your monthly child support – or at least as much as possible – until a court orders otherwise.
If you are laid off or have reduced hours, you should contact the Office of the Attorney General (OAG) immediately to notify them of the change and request a review of your child support order through the OAG. For more information on how to begin the review process, visit the OAG’s website: https://www.texasattorneygeneral.gov/child-support/paying-and-receiving-child-support/get-back-track/modify-child-support/support-modification-process
Local child support offices are accepting review applications and processing them as quickly as possible. Although they are not scheduling in-office appointments right now, they are moving forward with modifications and then trying to negotiate agreements by telephone, email, etc. They are also in the process of trying to set up the ability for video conferencing, and hopefully that will be available soon.
Be aware that if you begin receiving unemployment benefits because of being laid off, your child support obligations will likely be taken from your unemployment benefits through wage withholding. The Texas Workforce Commission withholds money according to your child support obligations, and up to 50% of the unemployment benefits you receive may be withheld to go toward your monthly support obligation.
Another thing to be aware of if you are laid off is any requirements within your child support order to notify the child’s custodian, the court, and the OAG of any changes in your employment. Be sure to carefully follow any current orders.
Will my stimulus check be taken for back child support?
When Congress passed the CARES Act, they made the funds exempt from being garnished for most government debts, but they did not exempt past-due child support. If you have past-due child support, your stimulus rebate payment, up to the total amount of child support owed, will go toward the amount that you owe and be given to the child support obligee.
If your stimulus rebate is intercepted and used to pay toward past-due child support, you are supposed to receive notice from the federal government letting you know about it. If you get a notice like this and believe the withholding was an error, then you should notify the OAG immediately. According to information on their website, the OAG’s local child support offices are in the process of transitioning to provide virtual services for child support and enforcement. During this transition time, the local child support offices are closed, but they are continuing to offer services over the phone and internet, so you may contact them as needed.
I have a court date coming up in my divorce or custody case, but I heard that the courthouse is closed. What’s going to happen with my case?
During the COVID-19 pandemic, many courts are only holding hearings that involve emergency issues or matters that they consider to be essential. Your best course of action is to regularly check for any updates by visiting the website for the Texas Office of Court Administration and the District Clerk in the county where your case is pending to regularly check for any updates on the website for the court in which your case is filed, and to call or email the court coordinator for the court in which your case is filed. Due to the uncertainty of the pandemic, many courts have canceled hearings without issuing exact reset dates. Most likely, when the pandemic subsides, courts will begin issuing reset dates for any previously scheduled hearings as well as allowing new hearings to be scheduled.
The court says we have to mediate our case. Can we still do that now? How?
Many Dispute Resolution Centers that offer reduced cost mediations are temporarily closed due to the COVID-19 pandemic. They should reopen once the pandemic subsides. Some, however, are now offering virtual mediations via telephone or video conference. You’ll need to check with your local Dispute Resolution Center to see what their current policies are.
Another option for mediating cases right now is to work with a private mediator—typically a private family law attorney who does not represent either party in the case. Private mediators often charge significantly more than the Dispute Resolution Centers for mediations, but if you wish to hire a private mediator, there are many who are continuing to work and offer virtual mediations. If you do choose to hire a private mediator, you can perform a Google search for family law mediators near you and contact them directly.
You should regularly check the website and phone lines of your local Dispute Resolution Center for any updates, and be sure to schedule your mediation as soon as possible, since dates are likely to fill up quickly due to their current limitations.
I was planning to file for divorce before this all happened, but nothing has been filed yet. Can I still do that now, or is everything closed? What’s the process now?
You may still file for divorce and the process and requirements are still basically the same. However, you may find that it takes longer to finalize due to the fact that many courts are only hearing emergency cases at this time, and due to the fact that the timeframes related to service of process have been mandatorily paused by the Texas Supreme Court. You should check the website for the District Clerk in the county you plan on filing for divorce for more guidance in regard to their local procedures for acceptance of pro se filings. Remember, you can always use efiletexas.gov to file your pleadings online.
I’m stuck at home with an abusive partner. What can I do?
If you are in an emergency situation, always call 911. Additionally, you may consider developing a personal safety plan, including checking in with a family member or close friend and using a safety “code word” to alert them if you are in danger so they may call law enforcement on your behalf. You can also the National Domestic Violence Hotline at 1−800−799−7233 or TTY 1−800−787−3224, or your local shelter for assistance. Remember, your internet browser history and call logs may be reviewable by the abuser.
I am an essential worker. I heard that some essential workers are losing custody of their kids just because they have to work jobs where they might get the virus. Am I going to lose my kids because of my job?
Probably not. The Texas Supreme Court has announced that existing custody and visitation orders are not automatically affected by the existence of the pandemic, a state of disaster being declared, or any stay-home orders in effect. Existing orders remain in full force and effect, regardless of what each parent’s job is.
However, individual parties can still file suits with the courts asking to change existing orders when they believe that there have been changes in circumstances affecting the child’s best interest. Some parents have filed suits asking to modify the possession orders of essential workers over concerns of exposure to the virus. There have been news reports when such requests have been granted, but many similar requests have also been denied by courts. Each case will have to be considered on its own facts. It is possible that a court could find that a temporary change to a parent’s possession schedule is in a particular child’s best interest for reasons specific to that child and family. For example, a child with a pre existing medical condition may need different precautions than an ordinarily healthy child.
If you are an essential worker, and your child’s other parent is asking to change your schedule, you may be able to resolve the conflict best by having a discussion to reach a mutual agreement. Consider options such as phone or video access, make-up time to be taken with the child later, or an agreement about safety measures that you could take now to reduce any risk to the child.
I am an essential worker. My kids are out of school, I’m working long hours, and I need help. If I let my kids go stay with their other parent or another relative for a while, does that mean I’ll lose custody of my kids?
Probably not. If you let your children stay with their other parent for a short time (i.e., a few weeks) because you have an essential job, a court would probably not grant that other parent a modification of custody for that reason alone. If there are other significant issues, however, the other parent has the same ability to seek a modification that he or she always would.
Short-term non-parent caregivers, on the other hand, normally would not have standing to bring a custody case in court. A non-parent can get standing to seek custody of your children if you leave your children to live with that non-parent for six months or more, with the non-parent providing care and making decisions for the child as a parent normally would.
Lone Star Legal Aid is a 501(c)(3) nonprofit law firm focused on advocacy on behalf of low-income and underserved populations. Lone Star Legal Aid serves millions of people at 125% of federal poverty guidelines that reside in 72 counties in the eastern and Gulf Coast regions of Texas, and 4 counties of southwest Arkansas. Lone Star Legal Aid focuses its resources on maintaining, enhancing, and protecting income and economic stability; preserving housing; improving outcomes for children; establishing and sustaining family safety and stability, health and well‐being; and assisting populations with special vulnerabilities, like those who have disabilities, or who are elderly, homeless, or have limited English language skills. To learn more about Lone Star Legal Aid, visit our website at http://www.lonestarlegal.org.
Media contact: Clarissa Ayala, cayala@lonestarlegal.org.
