As COVID-19 Disrupts Spring Break, Texas Supreme Court Resolves a Key Custody Dispute

The COVID-19 pandemic has created urgent disputes among divorced parents about who keeps the children during widespread post-spring break school closures, forcing the Texas Supreme Court to step in with an answer.

Family law attorneys have been fielding calls from anxious clients asking questions about whether they were going to get their children back from their ex-spouse after spring break. Those lawyers, in turn, have bombarded the state’s district courts, pleading for a definite answer to pass on to parents. Next, those judges called the Texas Office of Court Administration for guidance, leading to the Texas Supreme Court to take action.

Many divorcees follow the Texas standard possession order that says the custodial parent, whom the child lives with, and the noncustodial parent, will alternate years to keep their children on spring break. This year, many noncustodial parents had possession of their children over spring break, and their orders directing them to return the child the evening before school resumes.

The novel coronavirus hit Texas at spring break, leading many school districts to announce weekslong school closures by saying they were “extending spring break.”

“There’s quite a bit of stress and almost panic,” said Holly Rampy Baird, partner in Orsinger Nelson Downing Anderson in Dallas. “This is more uncertainty on top of the most uncertain situation our nation, and society, has faced in a long time.”

“Many noncustodial parents who had spring break this year looked at their order and said, ‘It means I get two weeks,’ ” Baird said.

Panic ensued among the custodial parents who wanted their children returned as if the school closures did not happened. Also, because courts across the state have said they are only handling essential cases and postponing hearings and trials in nonessential cases, these parents didn’t know if courts would agree to hear their disputes about who keeps the kids, Baird said.

The Texas Supreme Court settled the issue Tuesday in its second emergency order of the pandemic, ruling that the originally published school schedule will control.

“Possession and access shall not be affected by the school’s closure that arises from an epidemic or pandemic, including what is commonly referred to as the COVID-19 pandemic,” said the order, which added that parents are still allowed to change the possession schedule if they agree on the changes.

Justice Debra Lehrmann said the court agreed on the solution during a teleconference to relieve a source of stress during the outbreak.

“That’s the reason we used our emergency power to do that, to try to help these families as much as possible,” Lehrmann said.

Judges in the Dallas-Fort Worth area were jumping in with local solutions until the Supreme Court weighed in. The district courts in both Dallas and Collin counties issued emergency standing orders, saying the original school schedule would control.

“All of the family lawyers were deluging me with requests,” said Judge Emily Miskel of the 470th District Court, who is also Collin County’s local administrative judge. “The lawyers were demanding a solution. At first, I was hesitant to do it in the form of an order, because courts are not supposed to issue advisory opinions that are not based on specific facts.”

However, the Texas Supreme Court’s first COVID-19 emergency order March 13 gave lower courts the permission to alter procedures to deal with the pandemic. By Tuesday, Dallas County issued its emergency standing order telling parents to follow the originally published school schedule.

“We immediately issued an order, exactly the same as Dallas,” Miskel said. “Given an emergency situation, it was an appropriate step, even if normally we wouldn’t have done it like that.”

Miskel added that family law attorneys are relieved to have an answer to pass on to their clients.

“People don’t have to spent a lot of money researching the question, or testing the issue, they just have an answer and can go about their day,” she said.

Baird, the Dallas family law attorney, noted that when the virus crisis has passed, she wouldn’t be surprised to see Texas lawmakers changing the language in the Family Law Code that established the standard possession order. That would prompt family law attorneys to alter language in the the standard forms they use for these possession orders.

She said, “It’s a possibility on the table after this.”