Holiday Travel With Your Children During the Pandemic May Affect Your Custody Case

November 18, 2020Alerts

Unless your specific court order prevents out-of-state travel or has other restrictions, then generally, each parent may choose to travel during the holidays even during the pandemic, whether or not the other parent agrees. However, violating state travel laws, CDC and state quarantine guidelines and court-ordered visitation arrangements can potentially affect a custody case. Personal issues may also arise when one parent feels safe with airline travel or interstate travel and the other parent prefers to stay at home and self-isolate.

The holidays are generally stressful and difficult for children whose parents live in separate homes – the pandemic is not making this holiday season any easier. Many people have not seen their extended families in several months due to the pandemic and many families are desperate to host traditional, albeit socially distanced, gatherings to make the holidays feel more normal. However, an increasing number of states are imposing further restrictions on social gatherings and limiting travel as the holiday season approaches. Public data demonstrates that infections commonly arise from family gatherings and house parties. Indoor gatherings are considered by the CDC to be one of the most high-risk activities. Despite these statistics, many parents will choose to travel during the upcoming holiday season, which will potentially affect custody schedules.

First and foremost, if you chose to travel with your children during the holidays, check in advance for any quarantine restrictions. For example, if your extended family lives in a state requiring a two-week quarantine, unless your parenting time allows you two weeks of possession with your children, you likely cannot travel to that state without either violating state law or violating your court order. Even if your state law allows you to travel without additional restrictions, you may want to consider testing yourself and your children both before and after travel to reduce the risk of unintentionally exposing extended family members to the virus. Regardless of your political or personal thoughts on COVID-19-related restrictions, following state-imposed guidelines while traveling and attending events during the holidays will help minimize or reduce any potential impact to your custody arrangement. As long as a parent is following state guidelines for COVID-19 restrictions, most judges will not alter custody orders to prevent one parent from traveling with the children. Also, note that the Texas Supreme Court has issued orders stating, in part, that current custody orders remain in place even during COVID-19-related restrictions.

Several clients have asked whether they can travel to visit family if one family member tests positive for COVID-19 but the two-week quarantine will be over by Thanksgiving or other upcoming holidays. According to the CDC guidelines, after the two-week quarantine, the individual can resume normal activities. Therefore, technically, under these circumstances travel is still appropriate. Keep in mind that plans may change last minute if other family members in the home test positive and the quarantine time is extended. Stay vigilant, cautious and do everything in your power to keep yourself, your children, your family and the other parent healthy.

If you travel during the holidays and end up with the virus, do not use that as an excuse to keep your child from the other parent. You must notify the other parent of the illness and if the other parent chooses to enforce the custody orders, you must let the child go for visitation. While there are some circumstances when withholding a child is a defensible action, if you do not let the kids go during their court-ordered visitation period, you are taking a risk by not following a court order. The risk is that the other parent/conservator might file a motion to enforce, and you could be held in contempt of court. Alternatively, if the other parent tests positive for the virus after traveling and wants to enforce visitation, you should try to reach an agreement to make up the missed visitation after that parent has completed quarantine and/or no longer has symptoms.

While all individuals should take extra precautions to keep themselves and their families safe this year, parents involved in high conflict relationships need to be extra cautious about their choices this holiday season. Regardless of your situation, remember that 2020 has been a difficult year for all of us and try not to use COVID-19 or the other parent’s choices to keep the children from seeing both parents during the holidays.

If you have specific questions about your circumstances, our Texas Family Law team stands ready to guide and assist you with emergency motions, shaping agreements or custody-related issues. We provide strategy and guidance with divorce, custody and family law related matters in Texas, Arizona, Georgia and Florida.

For questions about this alert or related issues, please reach out to Laura S. Hayes at [email protected], Jamie-Lee Denton at [email protected], Erin Garza at [email protected] or any member of the firm's nationwide Family Law Practice.