If you or your child tests positive for COVID-19, one of your biggest concerns may be protecting your health and safety as well as that of the people around you. As such, and as recommended, you may decide to self-quarantine and restrict interactions with others so as not to spread the disease. But if you share custody of your child with their other parent, such action may bring up many questions, including whether or not you still have to send them for visitation. Although the answer to that question may seem obvious because sending your child to visitation after a positive COVID test can expose others to the virus, in reality, the situation itself is complex, and the answer isn't straightforward.
Visitation schedules are court-ordered, which means you are required to adhere to the terms; otherwise, you may face legal consequences. Thus, you are technically required to send your child with their other parent, regardless of the situation. However, that is not to say you don't have options for temporarily stopping visitation and keeping those around you safe.
In its most recent order issued on November 11, 2020, the Texas Supreme Court stated that possession and access to a child is not affected by stay-at-home orders or other government restrictions enacted in response to the pandemic. The order goes on to say that possession schedules may be modified if the circumstances warrant such action. This means that if either your or your child tests positive for COVID, you may not have to send them for visitation. It's important to note that you must follow allowable procedures before doing so.
Working Out an Agreement with Your Child's Other Parent
One of the first avenues you can pursue to modify your custody agreement is speaking with your child's other parent about your situation. The Texas Supreme Court's order provides that a possession schedule may be altered "by agreement if allowed by their court orders(s)..." Therefore, if your current order says that you and your child's other parent can change the terms as long as you both agree, you can attempt to work out a different schedule where you maintain possession of your child while you are recovering from your illness.
If your child's other parent does not agree to alter the schedule and wants visitation to continue as ordered, you cannot willfully withhold access. Doing such may result in them filing a motion to enforce the possession order. If they prevail, you may be held in contempt of court.
However, if your case is taken to court, you may be able to bring up contracting COVID as a defense. You must ensure that you have proof that you couldn't comply with the visitation order. Thus, you must keep documents, medical records, and other relevant information pertaining to your situation.
Requesting an Emergency Modification
If you and your child's other parent can't agree on changing the visitation schedule or your order does not allow for modification through mutual agreement, you can seek to alter the terms by filing for an emergency modification order. In this situation, the court will review your circumstances to determine whether changing the order is warranted. Courts make their decision on what's in the best interests of the child, which means you may be able to have the possession schedule altered until you have recovered from COVID.
Speaking with an Attorney About Your Case
We are living in unprecedented times because of the COVID pandemic, and many questions that arise are not ones that have been asked or dealt with before. Because of this, discussing your case with a lawyer can help navigate these uncharted waters. They can give insight and answers to your visitation concerns.