During these times of COVID-19,  divorced parents exercising possession of children are having difficulties in many situations regarding the possession of children during the pandemic.  As a general rule,  the parent with possession rights has the rights of possession as if no pandemic existed.   The rights of possession of a parent are not affected by restrictions put forth by local and state officials to control the spread of the virus.

What are my rights during the holidays as a noncustodial parent?

Under section 153 of the Texas Family Code, we advise our divorce and custody clients that the following provisions govern possession of the child for certain specific holidays and supersede conflicting weekend or Thursday periods of possession without regard to the distance the parents reside apart. The possessory conservator and the managing conservator shall have rights of possession of the child as follows:

(1) the possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years;

(2) the possessory conservator shall have possession of the child in odd-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in even-numbered years;

(3) the possessory conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years;

(4) the parent not otherwise entitled under this standard possession order to present possession of a child on the child’s birthday shall have possession of the child beginning at 6 p.m. and ending at 8 p.m. on that day, provided that the parent picks up the child from the residence of the conservator entitled to possession and returns the child to that same place;

(5) if a conservator, the father shall have possession of the child beginning at 6 p.m. on the Friday preceding Father’s Day and ending on Father’s Day at 6 p.m., provided that, if he is not otherwise entitled under this standard possession order to present possession of the child, he picks up the child from the residence of the conservator entitled to possession and returns the child to that same place; and

(6) if a conservator, the mother shall have possession of the child beginning at 6 p.m. on the Friday preceding Mother’s Day and ending on Mother’s Day at 6 p.m., provided that, if she is not otherwise entitled under this standard possession order to present possession of the child, she picks up the child from the residence of the conservator entitled to possession and returns the child to that same place.

What if one of my weekends is extended by a holiday?

The Texas Family Code section153.315 provides the rules for weekend possession which is extended by a holiday.  In particular, it provides the following:

(a) If a weekend period of possession of the possessory conservator coincides with a student holiday or teacher in-service day that falls on a Monday during the regular school term, as determined by the school in which the child is enrolled, or with a federal, state, or local holiday that falls on a Monday during the summer months in which school is not in session, the weekend possession shall end at 6 p.m. on Monday.

(b) If a weekend period of possession of the possessory conservator coincides with a student holiday or teacher in-service day that falls on a Friday during the regular school term, as determined by the school in which the child is enrolled, or with a federal, state, or local holiday that falls on a Friday during the summer months in which school is not in session, the weekend possession shall begin at 6 p.m. on Thursday.

What about picking up and dropping off my child?

Sec. 153.316. GENERAL TERMS AND CONDITIONS of the Texas Family Code provides custodial and noncustodial parents the following guidelines:

The court shall order the following general terms and conditions of possession of a child to apply without regard to the distance between the residence of a parent and the child:

(1) the managing conservator shall surrender the child to the possessory conservator at the beginning of each period of the possessory conservator’s possession at the residence of the managing conservator;

(2) if the possessory conservator elects to begin a period of possession at the time the child’s

school is regularly dismissed, the managing conservator shall surrender the child to the possessory conservator at the beginning of each period of possession at the school in which the child is enrolled;

(3) the possessory conservator shall be ordered to do one of the following:

(A) the possessory conservator shall surrender the child to the managing conservator at the

end of each period of possession at the residence of the possessory conservator; or

(B) the possessory conservator shall return the child to the residence of the managing conservator

at the end of each period of possession, except that the order shall provide that the

possessory conservator shall surrender the child to the managing conservator at the end

of each period of possession at the residence of the possessory conservator if:

(i) at the time the original order or a modification of an order establishing terms and

conditions of possession or access the possessory conservator and the managing

conservator lived in the same county, the possessory conservator’s county of residence

remains the same after the rendition of the order, and the managing conservator’s

county of residence changes, effective on the date of the change of

residence by the managing conservator; or

(ii) the possessory conservator and managing conservator lived in the same residence

at any time during a six-month period preceding the date on which a suit for dissolution

of the marriage was filed and the possessory conservator’s county of residence

remains the same and the managing conservator’s county of residence

changes after they no longer live in the same residence, effective on the date the

order is rendered;

(4) if the possessory conservator elects to end a period of possession at the time the child’s school resumes, the possessory conservator shall surrender the child to the managing conservator at the end of each period of possession at the school in which the child is enrolled;

(5) each conservator shall return with the child the personal effects that the child brought at the beginning of the period of possession;

(6) either parent may designate a competent adult to pick up and return the child, as applicable; a parent or a designated competent adult shall be present when the child is picked up or returned;

(7) a parent shall give notice to the person in possession of the child on each occasion that the parent will be unable to exercise that parent’s right of possession for a specified period;

(8) written notice, including notice provided by electronic mail or facsimile, shall be deemed to

have been timely made if received or, if applicable, postmarked before or at the time that notice is due; and

(9) if a conservator’s time of possession of a child ends at the time school resumes and for any reason

the child is not or will not be returned to school, the conservator in possession of the child shall

immediately notify the school and the other conservator that the child will not be or has not been returned to school.

What does the case law says about these issues?

In re E.M.V., 312 S.W.3d 288 (Tex. App.—Dallas 2010, no pet.). A wife’s testimony that her husband was a violent man who had committed multiple acts of violence toward her in the previous two years, that the parties’ daughter had witnessed some of the violence, and that the husband agreed to restricted access to the daughter with supervised visitation supported a trial court’s decision to restrict the husband’s visitation with the daughter.

In re Marriage of Bertram, 981 S.W.2d 820 (Tex. App.—Texarkana 1998, no pet.). A trial court abused its discretion when it ordered a father, who was part owner of a private plane and who as a commercial pilot had some access to discounted air transportation, to pay all air travel for visitation between Wisconsin and Texas when, after using all discounts, the airfare would cost $6,400 per year.

In Villasenor v. Villasenor, 911 S.W.2d 411 (Tex. App.—San Antonio 1995, no writ). A trial court did not abuse its discretion by granting a father’s request restricting the county of residence of his minor boys to his county of residence because granting the mother’s request to move away would have meant that father and sons would not continue to enjoy a close relationship and the boys would be separated from their older sister.

What about alternative beginning and ending possession times?

Under section 153.317 of the Texas Family Code, a parent may choose:

(a) If elected by a conservator, the court shall alter the standard possession order under Sections 153.312, 153.314, and 153.315 of the Texas Family Code to provide for one or more of the following alternative beginning and ending possession times for the described periods of possession, unless the court finds that the election is not in the best interest of the child:

(1) for weekend periods of possession under Section 153.312(a)(1) during the regular school

term:

(A) beginning at the time the child’s school is regularly dismissed;

(B) ending at the time the child’s school resumes after the weekend; or

(C) beginning at the time described by Paragraph (A) and ending at the time described

by Paragraph (B);

(2) for Thursday periods of possession under Section 153.312(a)(2):

(A) beginning at the time the child’s school is regularly dismissed;

(B) ending at the time the child’s school resumes on Friday; or

(C) beginning at the time described by Paragraph (A) and ending at the time described

by Paragraph (B);

(3) for spring vacation periods of possession under Section 153.312(b)(1), beginning at the

time the child’s school is dismissed for those vacations;

(4) for Christmas school vacation periods of possession under Section 153.314(1), beginning

at the

Do I have to follow a possession schedule?

Whatever the possession schedule that you may have as a custodial or noncustodial parent, it is important to remember that parents can mutually agree to follow what ever possession schedule works best for you and the child.  The courts allow parent to mutually agree to any possession schedule that may work the parents.  As long as the parents have a mutual agreement to the possession,  there will be no violation of the court’s order.