Could COVID-19 end the “Standard” Possession Order?

The coronavirus (or COVID-19) is changing everything, and it could change custody orders and school calendars. When COVID-19 first appeared in Texas, the Texas Supreme Court took the drastic step of issuing emergency orders. This included ordering parents to continue following the underlying school calendar as if school were still in session. If they hadn’t issued those orders, the parent in possession of the child on Spring Break might still have the child now! A Texas Standard Possession Order is fundamentally built on school calendars. 

And yet, more coronavirus changes keep on coming. 

Recently, the Texas Education Agency (“TEA”) announced that it is recommending major changes to school calendars, modeled after year-round schooling. Other options include “summer enrichment” (similar to a “mini-mester” or mandatory summer school), or a complete calendar re-design. You can learn more about the various options here (https://tea.texas.gov/texas-schools/health-safety-discipline/covid/coronavirus-covid-19-support-and-guidance). Some school boards are also considering “A-B” schedules, where half the students go to class on A days, and the other half go on B days. 

An intercessional school calendar would allow “make-up weeks” (similar to bad weather make-up days). These make-up weeks could occur around Thanksgiving, Winter Break, Spring Break, and late June to allow temporary closures due to coronavirus. 

What does this mean for parents? If schools are not closed due to COVID-19 in the fall, Thanksgiving Break could extend for two to three weeks, Winter Break/Christmas Break could last four to five weeks, Spring Break could last three weeks, and the school year could extend well into June. If there is an outbreak or a second wave of infections, then the school could close for a period of weeks, and “add back” weeks during the pre-scheduled break periods. It is helpful to flip through the TEA’s powerpoint on this intercessional calendar here (https://tea.texas.gov/sites/default/files/Adjusting_School_Calendars.pptx).

What does this mean for parents? Most custody orders, including the Texas Standard Possession Order, are built around traditional school calendars with these guidelines:

  1. Ending the year in late May/early June;
  2. Allowing week-long breaks for Thanksgiving and Spring Break; and
  3. Designating approximately three weeks off in late December/early January.

An intercessional calendar likely will turn every custody order on its head— especially the holiday periods of possession—and leave co-parents scrambling to figure out what their possession order means. An intercessional school calendar is not necessarily a bad thing, and may be beneficial to our kids as we learn how to live our lives with COVID-19 in the background. With proper planning and good communication, families can adapt to almost any school calendar, be it intercessional, A/B Days, mini-mesters, etc. But legal orders and legal frameworks historically are slower moving.

What should you do now? First, this calendar change, if made, needs to be formally adopted by the school board and tailored to that specific district. Fort Worth ISD may have different needs than Aledo ISD or Mansfield ISD. Pay close attention to your local district—the school calendar may not change (but some change is likely).

Second, talk to your child’s other parent. Communication is key to effective co-parenting. Work obligations and health issues also need to be considered when figuring out how intercessional school calendars could impact custody orders. An amicable agreement between you and your ex will be a better fit for your family as opposed to a judge’s decision.  

If you reach an agreement, that agreement still needs to be put into a court order signed by a judge. If all you have is a handshake, or even a signed contract where both parents formally agree to new custody terms, those terms may be unenforceable. That means if one parent suddenly changes their mind and refuses to turn over your child, the agreement could be tossed out the window without any consequences—and you are left with the old order that never envisioned an intercessional or an A-B school calendar. The court order is your backstop. Families always can come up with new agreements for possession, but when that agreement breaks down, the court order governs. 

What will your new order look like? It is hard to know what the new normal will be once coronavirus is in our rearview mirror. However, if intercessional calendars, mandatory mini-mesters, or A/B days are adopted, all custody orders likely will need to be updated to reflect the school’s new calendar. 

These updates could include rebalancing summer and holiday periods of possession, notification clauses regarding pandemic-related closings and make-up weeks, along with provisions ensuring the health and safety of the children. Creativity will be required as each family’s situation is unique and as different school districts adopt different calendars. Modifying your Texas custody order and updating it in light of the coronavirus is becoming more and more important.

If you have any questions regarding child custody, or the impact of coronavirus on child custody, call the attorneys at Gardner & Smith.