During the first month of 2022, Texas schools reported over 190,000 new COVID-19 cases among Texas schoolchildren. With the Omicron strain of COVID-19 spreading rampantly, many divorced or separated parents are navigating new issues around visitation, medical decision-making, and related matters.

While raising a child with one’s ex in a pandemic may be unpleasant, divorced or separated parents can minimize conflict by communicating openly about COVID-related matters and being flexible where possible. For example, if a parent, child, or household member has symptoms of the virus or tests positive, that information should generally be communicated to the other parent promptly. If a parent’s possession time is missed because he or she is sick with COVID, the other parent should consider allowing make up time. Of course, many divorced or separated parents do not have a relationship with their ex that lends itself well to open communication and flexibility. What then?

Here are some answers to that and other frequently asked questions about COVID-19 parenting in two homes:

Q: My ex and I don’t get along and rarely communicate. Do I really have to communicate with him or her about this stuff?

Yes. In most instances, divorced or separated parents each have the right to receive information concerning the child’s health, so courts expect parents to communicate about matters such as COVID-19 exposure, vaccination, and the child’s health. In situations where parents engage in parallel parenting(i.e ., their contact is minimal and in writing and they do not collaborate much, if at all) versus co-parenting, parents might choose to continue communicating in writing, but they should be open to an increased level of communication during the pandemic. Regardless of the relationship between the parents, withholding information that relates to the child’s health will generally be frowned upon by family court judges.

Q: If I get COVID, what should I do about my possession time?

Ideally, when one parent gets COVID, the parties will work together to put the child’s best interest first. For example, if a child is too young to be vaccinated or has an immune deficiency or similar health issue, perhaps he or she should stay with the parent who does not have COVID. On the flip-side, if the child has been vaccinated and has no serious risk factors, it might be better for the child to stay with a parent who has COVID rather than a parent who has health issues, if being potentially exposed to COVID through the child would put the parent’s health at risk. . While the child’s health is paramount, keeping parents healthy is in the best interests of children, so parents should also consider their relative risk.

If parents cannot agree, COVID-19 is not an excuse to violate a court order. A parent, with or without COVID-19, generally has a right to designate a competent adult caregiver during his or her possession time. Although some custody orders contain a “right of first refusal,” in most cases a parent generally does not have a right to designate him or herself as the child’s care provider during the other parent’s possession period due to COVID.

Q: Our child has COVID, and my ex won’t let me have my possession time. What should I do?

In most instances, either parent should be able to care for a sick child, and a child having COVID is not an excuse to cancel one parent’s possession time. However, in some instances it makes sense to temporarily modify the schedule by agreement. For example, if one parent always cares for the child when he or she is sick, perhaps that parent should care for the child while the child has COVID. In such instances, the caregiving parent should consider offering make-up time when the child is feeling better.

However, again, COVID is not an excuse to violate court-ordered possession plans. Unless both parents agree to modify the schedule temporarily, parties should continue to abide by their court-ordered possession plans when a child has COVID. If a parent refuses to do so, the parent whose possession is being taken could consider an enforcement action.

In some instances, one parent may have concerns for a sick child’s safety while in the other parent’s care. For example, where one parent has a history of alcohol or drug abuse or severe mental illness, he or she may not be equipped to care for a child with COVID-19. In instances where a child’s safety is at risk, litigation may be necessary to protect the child.

Q: My ex and I disagree about whether to vaccinate our child. What should I do?

It depends. In Texas, the right to make decisions on a child’s behalf concerning “invasive” medical treatment is granted to one or both parents, while generally, either parent has the ability to make decisions concerning non-invasive medical treatment. So, the first question is: what does the parents’ court say?

Some court orders give one parent the exclusive right to make decisions concerning invasive medical procedures. More often, either parent has the right to make decisions concerning invasive medical procedures, or the parents are required to agree on such decisions. If one parent has the exclusive right to make these types of decisions, the parent with such rights can make the decision to vaccinate without the other parent’s approval.

If the parties each have the right to make invasive medical decisions or share the right jointly, then the second question becomes whether a vaccine is “invasive” or not, and the law is not settled in this area. A family law attorney can provide individual guidance depending on the parties’ current order and jurisdiction. In any event, it is important for parents to consult their child’s pediatrician, who can determine what is medically recommended for that particular child and situation.

Parenting in a pandemic is challenging, and pandemic parenting in two homes gives rise to many questions. Each family is unique, and the law around child custody is fact-specific. Divorced or separated couples struggling with COVID-19 related issues should consider consulting with a family law attorney for advice tailored to their circumstances.

About the Author: Claire James

Claire James is a trial lawyer whose practice focuses on helping businesses and individuals protect their most valued assets.