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Possession Orders & Child Support During the COVID-19 Crisis

 

Episode 14 - Possession Orders & Child Support During the COVID-19 Crisis

Welcome to the top Texas Lawyers podcast. This podcast is brought to you by the law firm Abercrombie and Sanchez PLLC.

Your hosts are Brian Abercrombie and Samuel Sanchez. Brian has been practicing law for 18 years and his board certified that sort of legal specialization in the area of family law. Sam has been practicing for 13 years, is licensed in both Texas and Florida, and is a certified mediator. This podcast is for informational purposes only and all views are the opinion of the hosts. It's not designed to provide legal advice for your particular legal matter, and it should not replace the advice of competent counsel. Welcome. And we hope you enjoy the top Texas Lawyers podcast..

Good afternoon and welcome to the top Texas Lawyers podcast. I'm your host, Brian Abercrombie, and with me, as always, is my co-host, the Doc Holiday to my Wyatt Earp, Mr. Samuel Sanchez. How are you doing, Sam? I'm doing well. Definitely your huckleberry. So we wanted to get in today. We've obviously been under quarantine for quite some time. I'm not sure when the last time you left the house with Sam, but it's been a while for me. Other than the short trip to the down the street grocery store, I've been pretty much holed up in the house with with home school and what not for quite some time. So we want to keep saying we want to get on here and talk a little bit about, you know, this COVID-19 crisis. You know, we want to talk a little bit about possession orders and we want to talk about, you know, child support. Those are all things that are that are going to come up with respect to this COVID-19 crisis and what's going on, you know, your obligations with respect to visitation, your obligations with respect to child support. You know, and those things are going to be things that will not last even after this thing is over with. Hopefully, we're getting close to the downside of this. But but you never know. I guess we'll find out later in the week as we go. But, Sam, let's talk a little bit about possession orders and the COVID-19 crisis. I know we've had a number of orders that came out from the Supreme Court with regard to the possession schedule. Let's talk a little bit about that.

Absolutely, Brian. And you're absolutely right. Obviously, if you're a you've got family, you know, split family right now, you have children that are going in between homes. People have extreme concerns. They're sitting there saying, "no", because obviously, you know, once you're not married all the coordination of having the same outlook on situations typically ends. And what that creates is situations that, you know, someone is respectful of a social distancing recommendation or order and someone else is not. And so as a parent, all of a sudden, you're presented with the challenge of does my child go to their other parent's house if I don't feel that it's safe? And that created a tremendous, you know, problem for courts and not only the courts, but state and Texas Supreme Court came out and said, look, because people were saying, well, I'm a shelter at home order. I live in Dallas County and you are not in a "shelter-at-home" county, which is, let's say, Smith County, that apart from Dallas. And so that means that the child stays with me, because when this order was issued, the child was with me. So Supreme Court says, you know, there's a shelter order. No, the Supreme Court says, "no", absolutely not. Essential travel is still transporting your child from one place to the other. So getting them to the other parent, regardless of whether you have a shelter in place, order or not. So you have the authority, the ability to transport that child. And the obligation they're in to be compliant with the underlying order. And that creates that obligation. And that's created a lot of problems for parents, as you and I both know, Brian, is that they weren't in the situation of what do you do if you have those concerns? Do you comply with the court order?

I think you absolutely have to comply with the court order. And remember that the court's going to remember this long after the. This crisis is over with and you don't want to be looked at as the parent that tried to take advantage of this crisis and use it to your advantage in an effort to keep the kids in an effort to deprive the other parent of possession and access time, because I think courts are going to be able to see through those kinds of things very, very quickly if you have legitimate concerns. You know, that's that that's the time to talk to talk to the other parent, let's say have one parents, a health care worker, and they're exposed to, you know, exposed to this virus on a daily basis. You know, that's a legitimate concern that probably needs to be discussed and that that may be something that's worth taking emergency court action on, maybe, maybe not depending on the circumstances. But it's definitely not a time to just use the possession or to your advantage and deprive the other parent of possession time just because there is a shelter in place order.

I agree. Now, let's take it on the flip side. So, you know, let's say that you really do have, as Bryan stated, legitimate concerns. You have somebody who has potentially been exposed to COVID-19 or is feeling ill, and you're the parent on the side who has the child and is trying to determine do I have the ability to refrain from surrendering that child? You always want to act in a way that preserves the health and safety of your children.

That's the underlying order that a court will always want to tell a parent is, you know, we want you to act in a way that makes you a good parent and protecting and preserving your child's life is definitely going to be the right decision. You just have to understand that you have to do it to Bryan's point with true, true and substantial and material evidence that that is the situation. It can't be speculation. It can't be innuendo. It needs to have some physicality to those concerns, because what what's going to happen if you try to make those types of decisions just because let's say you're super paranoid or you're OCD or you're a hypochondriac and you just have these mad anxieties over it, you're really going to set up a situation where you do tremendous damage probably to the relationship between you and your former spouse. And on top of that, additionally, you're also going to have problems in relation to, you know, the court trying to justify those actions to the court, which is substantial and significant arguments you don't want to really have if it's not justified.

You better have an emergency if you're going to claim an emergency. That's that's what I would say. Or it could really come back to bite you in the long term.

Yeah, in the short term, obviously, you know, I've had a couple of clients who said, well, like, what if the action if I needed to take action, can I get into the courts immediately on an enforcement of possession based on a denial? And I would tell you right now, most courts who are in like the Dallas and Tarrant probably I would imagine that Harris County is the bigger counties. You do not have the availability to get immediate relief from court, you know. It's going to look at this and say, yeah, on the back end, once this is done and we're more free as a society to move around and get things done. Absolutely. You are going to have recompense. But in the immediate short term, if there's not exigent circumstances, it's very unlikely that you're going to be able to get into court, get some relief.

Yeah, I mean, I think some courts are doing, you know, Zoom hearings or hearings of an emergency nature by online or a Zoom or some other type of teleconference. So you might be able to get in there. But that's that's also a tough sell because you don't know that that varies from court to court. So you don't necessarily know which judge is going to be doing what. And. But if you're absolutely the parent that's being deprived of your time with your child, you absolutely try to take action as quickly as you can. And another thing that the courts will likely be considering as a result of this would be probably makeup time and things like this after this is over with.

Oh, absolutely, absolutely. You know, and that really leads us to kind of the next point that we wanted to talk about, which is, you know, in Texas, there's always financial obligations that come along with, you know, divorce situations where there children involved. There's usually going to be a primary parent. That primary parent is typically going to be entitled to some form of support. Well, support, as you all know, is typically going to be based on income. All right. 20 percent for one child. Twenty five percent to two children. Thirty percent for three children. On and on and on. And based on the statutory guidelines that were created by the legislature, what's going on now has never happened before. So many people getting furloughed, so many people losing their sources of income. But yet did that obligation stop?

Well, the quick answer to that is absolutely not. It doesn't stop. But can it stop? Well, Bryan, what do you think on that?

That's another thing where you're going to have a very, very difficult time getting a hearing for a child support matter. But my advice to a client in this situation would be get a modification and a request for a reduction on file as quickly as possible because the court can consider retroactively if you take the proper steps now. And then let's say you're out of a job for three or four months because of this thing and you fall behind on your child support. As a result of that, getting an emotion on file with a group request for a retroactive reduction in child support may save you a lot of time and a lot of money because it would allow you to get that get that for a judge to go back and say, yeah, you this was the allegation. But I'm correcting that to say this should have been the obligation. And now you don't have an arrearage so that all the old ostrich defense and burying your head in the sand will not work on a situation like this. So it's it's important to get in contact with an attorney potentially and at least get a request on file because you just don't know how long this is going to last. So you don't want to fall further and further behind. And then interest starts accruing and different things like that.

And not only that, Bryan, but, you know, we're seeing more and more and I think we're going to have to kind of see as the economy allows us to emerge from this crisis is, you know, what does life look like after coping? You know, we don't think it's gone. It's not going to be eradicated from the planet. All right. So is it still going to be around? Do you see around to do jobs that you had before even come back in the same capacity or income level that they existed before this all began? And so it really becomes a situation where I tell clients, I advise clients that if you have concerns, they're legitimate concerns. Then it's always better to get something on file. It's always better to have that line of demarcation that you're talking about that allows a court to go back to a certain point, because if you think, hey, you know what, I'm going to wait it out and then you go months down the road and you emerge from this in a way that your income is still substantially diminished. A court can only go back to Brian's point to the date you filed the request to modify.

Now, that may be a little longer that you wait. Now, that may be a change that comes later down the road, but it is not a change right now in the law.

So to your point, Sam, it's important to get that request on file.

Agreed. Agreed wholeheartedly. And so, like, let's talk about so let's say you get something on file. If you're lucky enough and let's say courts start to kind of ease the restrictions of what they're going to allow people to have hearings on, because we know that the law is changing, just like everything else in life is changing. And perhaps we are going to go more to a video conference type hearing for those types of matters. You want to be in that line. You want to be in the queue to be able to kind of have your concerns heard and addressed there. If people can't make it because people are saying, like, what's auto drafting out of my paycheck if I'm not receiving a paycheck? What's happening? Does that mean that the obligation and no know in Texas as an example, the child support division of the Texas of the office of the attorney general of Texas, that they're monitoring those payments and they're the ones who are really going to a lot of times for people who, even without an attorney, are going to file enforcement actions on those. So really pay attention to your underlying order. Take some time. Pull it out. Review it if you have questions about what are the implications and the language in here. How can I get something on file? You really need to reach out to competent counsel to give you some solid advice about this.

And I have a feeling that the attorney general's office, child support division, is going to be incredibly busy after this thing has passed us. So you better get on the stick now. If if you're in person, that's a needed and there's nothing wrong with go into court and say, hey, my income is not what it once was. My child support obligation needs to be reduced to be to reflect what my actual income is. And that's there's nothing in the world wrong with that. And yet you need to take advantage of that. That is a resource because you can save yourself a lot of heartache, a lot of heartburn and a lot of trouble down the road.

Couldn't agree more. Couldn't agree more, and it's really just something that's so avoidable for people that they'll just, you know, sit down, take some action, get some good advice.

And, you know, that's that's that's something that I mean, we're all stuck in this kind of situation where incomes are drastically reduced and things like that. And maybe it's a situation that act. But you want to put yourself in the best. Be able to work that out after the fact.

Yeah, absolutely. Know. Something else we really need to kind of touch on in the short term in association with this is because like we're talking about is a modification.

Okay. A modification of underlying obligations. There is no way, because as an example, I'll have people call him up and say, hey, you know what? My ex-wife, she told me on the phone. And we reached an agreement to change the child support obligation. So she told me all I need to pay is 100 bucks. Well, that's great. I mean, that's great goodwill. It's a great relationship that you have with your spouse. But she's not the judge.

And so until a judge signs the attorney general's office either. So they don't necessarily regard that as an agreement.

Agreed. And so while that you know, that something in writing an email, people like tweet stuff and they sign it on, you know, restaurant napkins, I don't know. But I would just tell you guys that can be an agreement. That's great. And yes, underlying family law is civil law, which is contract law. But you got to understand that that is not a court order. A judge is the only one who can issue a court order to change a legal obligation. And as long as it's in an order that is going to stand firm and be enforceable. Pass this if you don't get it changed.

Yeah. So if you write down an agreement and everybody signs it, you stamp it with blood and fingerprints and everything like that. It doesn't necessarily mean anything if somebody wants to back out of the deal later on. So you have to be very, very careful about, you know, these at home or kitchen table agreements because they're not binding to Sam's point. They're not necessarily obligations that are changed or ordered by a judge.

Correct. Correct. So and then you have, like I said, I mean, that goes for a lot of different things. That goes. That also goes for health insurance obligations because health insurance and medical support is another type of support that can be, you know, that can be enforced by a judge. So you want to make sure that let's say you're furloughed or you're laid off and you lose your health insurance benefits. That's something that it's not worth burying your head in the sand on either. That's something that you probably need to get in contact with the other with the other parent and see if there's a sense something that can be worked out or if you need to go and try to get that obligation modified.


Yeah, absolutely, Bryan, you you raise such a good point. And that's because health insurance is typically considered additional child support. So it's got the same enforceability provisions as the underlying cash support obligation. And in that, you know, it's not only, you know, the premiums, but it's the providing of that particular coverage. It could you know, and it's by statute got change. It's not just health insurance. It's dental insurance now, too. So, you know everybody. Well, right now you're like, well, what's the big deal? I'm locked in my house. I'm not going to the dentist. I get it. I get it. But you may have to go to the doctor's and you go to the doctor. And everybody has lost coverage because nobody's paying for that or the other spouse who was supposed to be covering that child. And so now, instead of having a copay, you have thousands and thousands of dollars worth of medical expenses. You know, that's going to come back and really haunt some people as we come out of it. I want to let's just give you a hypothetical. Take that first. Let's do a hypothetical.

Let's say you're laid off in the middle of March. Your health insurance benefits would only be good through the end of March. So now you're if you have to go to the doctor in April, you're going to have to have either signed up for COBRA and I'm taking those steps or secured some other type of health insurance policy because typically employer based health insurance ends the month that you you leave your employment and if you're laid off and that's typically what happens. So you have to be. And especially since we are dealing with a health crisis and a pandemic that will require, you know, could require substantial cost, medical treatment. You really, really need to make sure that you have those those things, especially the health insurance taken care of. And like I said, this is this you know, this is I know sometimes a lot of people are not on speaking terms with their ex and they don't get along. But this is really, really a time if if ever I'm going to give this speech about people need to be adults. This is probably the time where people need to be adults and sit down and really, really try to put their their children's interests ahead of their own and do something that's for the benefit their children, because it's hard on everybody. Everybody's losing money. Everybody's losing precious days that they're not going to get back and everybody's sitting at home. You know, I went under with under a lot of stress and a lot of anxiety.

Yeah, you're absolutely right on that point, Bryan. You know, I know it's hard, obviously, when people get stressed out and they get put under, you know, the traumatic situation that everybody's gone through. It makes difficult decisions even more difficult. It makes taking the high road extremely difficult. But to your point, if you can really ride the high road and take, you know, really the golden rule, right. We talk about it, you know, treat the other person on the other side of the equation. The way you would want to be treated at the situation was reversed. That's really going to be something that people should be employing right now because it's going to pay huge dividends.

I'm going to tell you that judges, you know, a lot of times judges have long memories and they're going to remember how you acted during the difficult times as to whether, I mean, judges are looking to see if people can cooperate or not. And the judges are going to look and see. Did you try to co parent with this when the times were tough? Did you try to compare with this other person, whether you whether you could get along with them, whether you could stand to be in the same room with them or not? Did you. Did you get along with this person or did you try your best to cooperate with this person when that when the chips were down?

Yep, yep, you're absolutely right.

So just to kind of recap where we are, I mean, the Supreme Court has absolutely said you need you need to adhere to the possession schedules as much as I possibly can, unless there's an emergency and make it a real emergency. And if you've got a support issue that needs modification or a health insurance issue or something to that effect, that is really going to impact your financial livelihood and your and your kids livelihoods and your other and potentially your other parents livelihood. Take action now. Get it out on the table now. And don't don't bury your head in the sand. Couldn't agree more. Great advice. All right, Sam, I thank you so much. I hope you and the family are staying safe out there. And we will talk soon.

Thank you for listening, and we hope you enjoyed the Top Texas Lawyers Podcast. If you'd like to schedule a consultation with either Bryan or Sam, please call 1-888-981-7509. Or visit us on the web at astxlegal.com. Once again, that's astxlegal.com. Thank you very much.

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