The outbreak of COVID-19 has had a significant impact on most people’s day-to-day lives.  Businesses shut down, schools closed, and people are uncertain in many areas of their lives.  Many counties (including Collin, Dallas, Denton, and Tarrant) have issued “shelter-in-place” or “stay-at-home” orders that restrict leaving home to essential activities only.  School closures and various (sometimes conflicting) shelter-in-place orders have left parents concerned about how this will affect possession and access schedules.

The Texas Supreme Court recently issued guidance on this topic.  On March 24, 2020, the Court issued its Seventh Emergency Order Regarding the Covid-19 State of Disaster.  The Court ordered “for purposes of determining a person’s right to possession of and access to a child under a court-ordered possession schedule, 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 order restricting movement issued by a government entity that arises from an epidemic or pandemic, including what is commonly referred to as the COVID-19 pandemic.”

What does this mean for parents? 

The Supreme Court has ordered that parents must continue to follow the possession and access schedule as ordered by their court.  This means that possession and access to a child are not affected by any shelter-in-place that your city or county has issued.  In fact, many shelter-in-place orders explicitly state that traveling to exchange the children is not a violation of the orders.

What if you believe your child is at risk by going to the other parent?

The Texas Supreme Court has thus far not issued exceptions that would permit a parent to withhold a child on the basis that the child is at risk of exposure to coronavirus.  We strongly recommend working with your co-parent to do what is in the best interest of your child under the circumstances.  Absent an agreement between the parents, the court ordered possession and access schedule is still in effect.  Although we expect courts to be lenient when a parent is reasonable in taking certain actions to keep a child safe, a party who does not follow the court-ordered schedule could be subject to court action, such as contempt of court.  If you have concerns about this issue, you should reach out to a family law attorney familiar with your court, as this situation will be case and fact specific.

What if schools stay closed?

Texas courts have given a great deal of guidance about how school closures impact child custody schedules, which are usually based on school schedules.  After several counties put out orders related to school closures, the Texas Supreme Court did the same.  In short, parents need to follow the originally published school calendar for possession and access unless they agree otherwise.  You can find the full text of the Texas Supreme Court’s order on possession during school closures here.

But aren’t the courts shut down?

The district courts in Texas are operating differently due to the COVID-19 pandemic, but they are still operating.  Many hearings are now conducted virtually via zoom.  Only hearings on essential matters can happen in person, but even those hearings can be conducted virtually by agreement.  Clerks are still processing filings and the court systems are still functioning and moving cases forward.  Many attorneys (including those in our firm) are working virtually and continuing to file cases and move cases forward on behalf of family law clients.

This is a constantly changing situation, and new orders have come out regularly from various state and local courts over the past few weeks.  For those in Collin County, Judge Emily Miskel of the 470th Judicial District Court is trying to keep up-to-date emergency orders posted here.  The Collin County District Courts Facebook page regularly posts updates with helpful information as well.

(Blog post by Samantha Mori and Holly Draper)

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Did you know that under the current state of the law in Texas, it is easier for a non-relative who had minimal involvement with a child but lived under the same roof to get in the door on a custody suit than it is for a grandparent or other family member?  Unfortunately, once someone gets in the door and has “standing” to sue for custody, the Texas Family Code does not provide any statutory protections for fit parents beyond a presumption in original suits that a parent should be appointed as the managing conservator over a non-parent.

The Texas Family Code might not protect fit parents, but the United States Constitution does.  The United States Supreme Court held in the landmark case of Troxel v. Granville, 530 U.S. 57 (2000), that the due process clause of the fourteenth amendment protects the rights of a fit parent to parent as he or she sees fit, without government interference.  The U.S. Supreme Court specifically found that “[t]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.”

The Draper Law Firm currently represents the father (“Relator”) in a mandamus proceeding currently pending before the Texas Supreme Court (In re C.J.C., Texas Supreme Court Case No. 19-0694).  We are arguing that the trial court judge abused her discretion and violated the father’s constitutional rights when she awarded rights and possession to a non-parent (the deceased mother’s fiance) over the fit father’s objections.

The case has garnered a lot of attention both within Texas and nationally, as six amicus curiae have filed briefs in support of our position.  Five non-profit organizations – the Texas Public Policy Foundation, the Texas Home School Coalition, the Parental Rights Foundation, the Alliance Defending Freedom, and A Voice for Choice Advocacy – have filed amicus briefs arguing for the protection of parental rights and asking the Texas Supreme Court to grant our petition.  Notably, the Texas Attorney General and the Texas Solicitor General filed an amicus brief on behalf of the State of Texas in support of our position.  This kind of amicus support in a family law case is exceedingly rare, and it underscores the importance of the issues involved in this case.

The Texas Supreme Court has set the case for oral argument on March 24, 2020 at 9:00 a.m.  Holly Draper will be arguing on behalf of the father, seeking to have the Texas Supreme Court render an opinion that would protect the rights of all fit parents in Texas.  Both the State of Texas and the Texas Public Policy Foundation have filed motions requesting to participate in oral argument.  If you are interested in learning more about the case, all of the briefs and filings can be found here.  The Texas Supreme Court live streams all oral arguments.  The site for viewing live oral arguments or searching for past oral arguments can be found here.

 

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