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Today is a Snow Day, Who Gets the Kids?

Last week, most schools across the Dallas-Fort Worth area closed because of the snow and ice. For most, it was the third time in the last two weeks school has closed because of bad weather. It never fails that, when schools are closed for bad weather, I get calls and emails from clients going through a divorce or a child custody case asking the same question: Who gets the kids on a snow day?

Here is how this usually plays out:

Under the divorce decree, Dad is to return the child to the child’s school at the time school resumes on Monday. Mom is to pick up the child after school on Monday. Monday morning, school is cancelled due to the bad weather. What is supposed to happen Monday morning?

The same logic also applies to sick days:

Under the divorce decree, Dad is to return the child to the child’s school at the time school resumes on Monday. Mom is to pick up the child after school on Monday. Monday morning, the child is sick and does not go to school. When does Mom get the child?

The first (and easiest) answer is that it depends on what the divorce decree says. However, possession orders in divorce decrees cannot specifically deal with every contingency that may come along, and too few of them deal with school closings. The most popular type of possession order in a divorce decree (called the Standard Possession Order or Expanded Standard Possession Order) is found in Sections 153.312-317 of the Texas Family Code. The closest the Standard Possession Order comes to addressing this issue is Section 153.315, which states as follows:

153.315. Weekend Possession Extended by Holiday

(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.

As you can see, while this provision does deal with student holidays or teacher in-service days, it does not specifically state that it applies to sick days or bad weather days. That begs the question: Is a snow day a “student holiday” under the statute? Typically, student holidays and teacher in-service days are determined by the school prior to the start of the school year. Snow days would probably not fall into that category, and sick days are certainly not addressed.

Typically, in possession orders, there is a default provision for undesignated periods of possession. That means that one parent’s possession periods are specifically defined, while the other parent is awarded all other times not specifically designated in the possession order for the other parent. This would mean that, in the examples above, Dad would be responsible for taking the child to Mom on Monday morning, even if the child is sick or the roads are unsafe.

In these situations, the legal answer is probably not the best answer. So, what can you do to avoid an argument (or litigation) every time your child misses school due to sickness or bad weather?

  1. Use common sense. If a snow day or sick day happens, communicate with your ex for the benefit of the child. Do not put your child in a dangerous situation just because you can’t get along.
  2. If you are going through a divorce or child custody case and do not have a final order yet, talk to your lawyer about adding provisions regarding sick days and bad weather days to your possession order. Having these provisions in your order will eliminate confusion in the long run.
  3. If your divorce or child custody case is over and the order is already in place, try to work out an informal agreement with your ex regarding these provisions. If the two of you are able to reach an agreement, write it down and follow it.

If you have more questions about your possession order, contact Gregory S. Beane at VernerBrumley. He can be reached by phone at 214-526-5234 or by email at mailto:gbeane@vernerbrumley.com. VernerBrumley’s principal office is located in Dallas, Texas.

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