COVID-19 Custody Cases in Texas: What is in the “Best Interest” of a Child
by Charla Bradshaw

While the best interest of the child is still the primary standard applied in custody cases, Covid-19 has given new meaning to the concept of a child’s best interest. It has been understood that putting a child in danger is against a child’s best interest, and a valid reason to deny parenting time. However, in the world of Covid-19, putting a child in danger may look different to parents and the courts. The best interest of the child may be analyzed by balancing health and safety, maintaining relationships with both parents, and parental decision makingew.

There is an upsurge of parents bringing suits against the other parent for concerns of their child related to Covid-19. Such cases involve accusations of the other parent not obeying rules, such as social distancing recommendations etc., and putting a child in Covid-19 danger. In such suits, the parent bringing the suit claims they are following the rules. People have different feelings about how to handle Covid-19. I refer to these differences as “levels.”

Some people believe you should never leave your house until the pandemic is over. (Level 1) Others go about their business as normal, but follow the rules. (Level 2) Others go about their business without following the rules which can be a cause for concern when it comes to children. (Level 3) Parents who are not on the same level will never see eye-to-eye during the pandemic. Parents should consider and have respect for the state of mind of the other parent with regard to the pandemic.

No matter how parents feel about each other, they must learn to love their child more than they dislike the other parent. This is has never been more important than during the pandemic. They should also consider make-up parenting time when a parent has to quarantine for a period of time. They must work together (despite their differences) on how they will co-parent the child during the pandemic. Parents who cannot co-parent during this pandemic simply do not love their child more than they dislike the other parent. This will not go unnoticed by the court in future court proceedings. It takes both parents listening and compromising. Parents who are unable to agree also put the child in more danger than just the pandemic. This is because parental disagreements will cause the child emotional distress, in an already overly stressful world.

I see school (in-person or virtual) as a huge area of disagreement during the pandemic. Many custody orders contain the provision that education decisions must be made by the agreement of the parents. Some even contain provisions that if the parents cannot agree, then a third party (e.g. school counselor) will make the decision. Third parties are simply not willing to make such decisions during the pandemic, which leaves the parents in disagreement on whether the child should attend in-person or virtual school. The pandemic has caused family lawyers to take a step back when considering the right of parents to make education decisions, and to analyze this right from a “pandemic” perspective going forward.

There is consensus amongst the family lawyers that there will be an upsurge of family law cases arising out of the pandemic. Custody cases may take on a different character as to the best interest of the child and parental decision-making. I predict that there will be zero tolerance in the courts for parents who recklessly exposed their child to Covid-19. After 28 years of practicing family law, I believe that parents who cannot agree during a state of disaster may face consequences from the courts (e.g. one parent being given the sole right to make important parental decisions). If I can give one point of advice, it would be “Do right by your child, always.”