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Child custody and visitation is one of the most difficult issues in any Texas divorce. Even if the spouses have not been fighting over much of anything, disagreements over the children can turn a peaceful divorce case unpleasant quite quickly. Texas law encourages parents to come to agreements on matters like visitation schedules. It also encourages parents to make every effort to ensure that a child has access to both parents. When parents cannot agree on a visitation schedule, Texas provides the Standard Possession Order (SPO), found in the Texas Family Code. The SPO provides a detailed schedule that is not quite down to the minute, but is rather close. What happens, though, when the outside world intervenes to make both an agreed-upon visitation schedule and the SPO schedule unworkable? Since this is Texas, and we all live near the Gulf Coast, let’s use hurricanes as an example of a natural disaster that could affect visitation after a divorce.
After a divorce, the parents of a child or children are known as “conservators.” Other people could be named as a conservator in other situations, but in a divorce, the court will appoint both parents to this role. In order for a court to grant a divorce and sign a final decree, the court must be satisfied that all issues involving custody of the children and the authority to make decisions about their well-being have been addressed. Texas law defines two kinds of conservators:
Courts in Texas can name both parents as joint managing conservators of a child, meaning that they both have decision-making authority, and must therefore work together to promote the child’s best interests. A court might decide instead to name one parent as the sole managing conservator, and the other parent as the possessory conservator. This means that both parents have a right to have the child stay with them, but only one parent has broad authority to make decisions for the child.
One might wonder what this has to do with natural disasters like hurricanes. At any time, one parent will have the child in their possession, even if the child is at school or involved in an extracurricular activity. That parent is responsible for knowing where the child is, and making sure the child gets home safely after school, practice, etc. The other parent has the right to know where the child is, and will have the greater right to possession of the child at certain times. A natural disaster throws all this careful planning and scheduling into disarray.
The Texas Family Code encourages parents to handle visitation by agreement whenever possible. This means that parents should agree in advance about visitation schedules, and should stick to those schedules as much as they can. If they are not able to agree, state law has established the SPO.
The SPO sets times when the parent who does not have the right to decide on the child’s place of residence may have possession of the child, and refers to that person as the “possessory conservator.” The possessory conservator may have possession of the child from 6:00 p.m. on the first, third, and fifth Friday of each month until 6:00 p.m. on the following Sunday. They may also have time with the child every Thursday evening. The SPO also provides for possession during every other spring break for the entire week, at various points during the Thanksgiving and Christmas breaks, and for extended periods of up to thirty days during the summer. The schedule is slightly different if the parents live more than one hundred miles apart.
If parents cannot agree on how to exchange the child or children, the SPO has provisions for that as well. The possessory conservator should pick the child up from school or from the managing conservator’s house, and return them to one of those locations, as appropriate. Any change to the visitation schedule should be communicated in writing whenever possible.
Natural disasters and other emergencies can render a custody plan impractical or impossible. They can also put a parent in violation of a child custody order through no fault of their own. For example, a parent might need to evacuate with the child from an area because of a hurricane, but they are under a court order not to move the child outside of that area. The parent cannot control the need to evacuate. Once the situation has settled down, they will still be subject to the geographic restriction. If they are not able to return to their home, they will either need to find somewhere to live in the area, or ask the court to modify the custody order.
Hurricanes can also interfere with visitation schedules. If a parent must evacuate with a child, that could make it impossible for the other parent to exercise their visitation. Even if everyone shelters in place, road closures could prevent a parent from coming to pick up a child, or from returning them to the parent with primary custody.
The key elements in all of these scenarios are communication and documentation. A parent is unlikely to be found in contempt of court for violating a custody order because of a hurricane if it is clear that the circumstances were beyond their control. If a parent tries to use a hurricane as a pretext for changing the custody plan or visitation schedule, however, it might be necessary to get the court involved. Clear lines of communication and documentation of the circumstances after the hurricane can help prove that a temporary change to custody or visitation was necessary or, as the case may be, not justified.
Board-certified family lawyer Stacey Valdez practices throughout the greater Houston, Texas area. We help people navigate difficult ordeals like divorce and child custody with compassion, dignity, and tireless advocacy. At Stacey Valdez & Associates, looking out for our clients and their families is, and always will be, our top priority. Please contact us today online, or call us at (281) 218-0900 to schedule a confidential consultation to see how we can help you. Your first meeting with us is free in most cases.