Father Ordered to be Vaccinated against COVID-19 before Visitation Allowed
If you are going through a divorce, you and your divorcing spouse can work out the details between yourselves – with the careful oversight and guidance of your respective divorce attorneys – and there is little risk that the court will not sign off on the terms you negotiate. An incident in May, however, demonstrates exactly how much discretion the court can exert in divorce cases and why many divorcing couples invest considerable time and effort into keeping the matter out of court.
COVID-19 Vaccination Required
The global pandemic continues to rock our world in unexpected ways, and a recent report in a Houston news outlet highlights this point. In this divorce case, which took place on Zoom, the divorce court judge ordered the man and his divorcing wife to be vaccinated for COVID-19 by the end of the week and let the father know that he would not be allowed visitation with his children until he complied. When the man expressed his disagreement with the order, the judge – according to the father – told him that he must not want to see his four kids. The father’s attorney reminded the man that the judge in question would remain in charge of his child custody concerns until his kids aged out (at 18) and that compliance was in his best interests. The father, instead, chose to contact the news channel mentioned while his divorce attorney withdrew. The father missed his court-ordered vaccination date and moved forward with his first post-divorce visitation with his children.
The Rest Is Still Unwritten
Whether or not this judge’s position will hold remains to be seen, but it stirs up plenty of questions. The COVID-19 vaccine has become something of a flashpoint for many, and now it is making its way into child custody matters. Whether mandates will stick and how far state and federal governments will go in support of their particular stance on said mandates is still up for grabs, but this case makes it very clear that divorce court judges have a good deal of discretion when it comes to ordering child custody arrangements. Ultimately, the court is bound by the best interests of the children, and if the judge determines that vaccinated parents support children’s best interests, it may support such a ruling. Parents, however, also have significant rights when it comes to their children, which could set the stage for a serious battle ahead. It is important to note that, in this case, the mother was also ordered to be vaccinated, and it is not clear whether or not she followed through with the order. How the judge would rule if both parents refused to be vaccinated is a question that is worth considering.
While your divorce is unlikely to make the news or to include such dramatic goings-on, this case demonstrates exactly how much discretion a judge can exert on every aspect of your divorce terms. Because COVID-19 has changed our world in ways we could never have expected, and because children are more vulnerable to its ravages than they had been, it is only natural to be hyper-vigilant about the safety of your kids, and if you have serious concerns that their other parent is not taking the matter seriously enough (or at all), you can address the matter with the court. Your children’s health and well-being are paramount, and these are trying times (any way you look at it), so do not be afraid to voice your concerns.
Your Divorce Terms
When you get down to basics, every divorce hinges on the primary terms involved.
Child Custody Arrangements
In Texas, there is both legal custody and physical custody. Legal custody addresses decision-making authority, and this authority can be assigned in the following ways:
You and your ex-spouse make the big-picture decisions together.
You and your ex-spouse make the big-picture decisions together, but if you cannot find a middle ground, one of you has tie-breaking authority.
One of you makes the decisions on your own.
You divide the decision-making authority between you according to the kind of decision that is being made.
The kinds of questions involved include those based on topics like the following:
Your children’s schooling
Your children’s religious upbringing
Your children’s health care
Your children’s extracurricular activities
Physical custody relates to when the children are with you and when they are with their other parent. Parents have the option of dividing their time equally according to a schedule that suits their own and their children’s needs or of making one of the parents the primary custodial parent, while the other has a visitation schedule. This is where the case above comes in – the father was assigned a visitation schedule with the caveat that he first became vaccinated.
Child support is calculated in close accordance with state guidelines, and it rarely goes off-script. If, however, there is an extenuating circumstance that requires closer attention, the court has the discretion to adapt the child support obligation to the situation at hand. A common example is a child who has special needs and requires the primary custodial parent to devote more time to his or her ongoing care. The parent who is the higher earner generally makes the child support payments (even if you split your parenting time equally).
The Division of Marital Property
The assets that you and your spouse acquire as a married couple – regardless of who makes the purchase or signs for it – are marital assets, and in the event of divorce, they must be divided equitably (or fairly). This divorce term has the potential to become one of the most hotly contested divorce issues of all. Making the matter even more challenging, any assets that either of you brought into your marriage with you will remain your separate property – but only if you managed to keep them separate throughout the years of your marriage. The division of marital property can become very messy very quickly, and it is one of the divorce terms that is most likely to require the court’s intervention.
Alimony is just as likely not to play a role in your divorce as it is to factor in, but when appropriate, alimony can be an important financial tool. Alimony is designed to help a spouse whose financial independence is negatively affected by divorce. If one spouse’s finances take a more considerable hit than the other’s – and the other spouse has the financial means to help – alimony payments may be ordered to help the financially disadvantaged ex gain more solid financial footing post-divorce.
If any one of these terms requires the court’s intervention, its discretion is considerable on the matter and, sometimes, can lead to surprising results.
Negotiating between Yourselves
Each of the divorce terms discussed (that applies in your unique situation) will need to be resolved between you and your divorcing spouse or will require the court to rule on the matter. The first line of defense when it comes to negotiating your divorce terms is keeping the matter between yourselves. If there are terms that you both agree to from the start, you are ahead of the game. If there is a term or terms that you are fairly close on, you may be able to hammer out your differences by committing to the process (with your respective divorce attorney’s skilled guidance) and finding a middle ground. The more terms you can resolve in this manner, the less expensive, time-consuming, and anxiety-provoking your case is likely to be. It is very common, however, to have terms that you and your divorcing spouse simply cannot resolve between yourselves, and that is fine – you have options.
Allowing Your Divorce Attorneys to Negotiate on Your Behalf
If you and your soon-to-be-ex have reached the point that negotiations between the two of you are no longer a viable option, do not beat yourself up. Divorce is one of life’s most stressful transitions, and there is no shame in reaching out for help. The fact is that your respective divorce attorneys can negotiate terms on your behalf. While your attorney will not sign off on anything that you are not in agreement with, this approach can take some of the pressure off of you and may help you gain perspective that facilitates further negotiations. In addition to skillfully negotiating for divorce terms that support your parental and financial rights, your divorce attorney can help in all of the following ways:
Lessening the pressure regarding negotiations with your divorcing spouse
Helping you better understand your best options and how your divorce would likely play out if it did go to court (based on his or her considerable legal knowledge and experience)
Helping you identify your divorce priorities, which can provide you with more powerful leverage and keener focus when it comes to the negotiation process
If terms remain unresolved at this point, all hope is not lost. Mediation is a viable option that helps many divorcing couples resolve their divorce terms outside of the courtroom.
Proceeding to Mediation
Mediation is a form of alternative dispute resolution (ADR) that involves the following:
You will be accompanied by your divorce attorney, and your spouse will be accompanied by his or hers.
A professional mediator will go back and forth between you throughout the mediation session in an effort to help you find a middle ground and explore your best options.
The setting is far less formal than court, and you will have the opportunity to participate fully and to voice your concerns along the way (something that will not happen in court).
You are not required to resolve your divorce differences at mediation, but if you are able to mediate terms that you do sign off on, they become legally binding.
What happens in mediation stays in mediation. There is no transcript of your mediation, and the records are not public (unlike the records from divorce court).
Mediation is not an all-or-nothing matter. If you are able to resolve even one term at mediation, it is one less term that will require the court’s intervention.
Mediation is generally considerably less costly than going to court.
Because mediation bypasses the court’s overly full docket, it also tends to be a less time-consuming approach.
At mediation, the decision-making power in your divorce remains squarely in your hands. You cannot be required to sign off on anything.
Choosing mediation can have many benefits, and many couples find that the informal but focused atmosphere facilitates forward movement in the negotiation process.
Another option is choosing the collaborative divorce process, which focuses on compromise and an individualized approach from the outset. When you enter into a collaborative divorce, you commit to resolving your divorce via the collaborative process. The focus of collaborative divorce is that commitment. If one of you bails on the collaborative divorce process, you will both need to hire new divorce attorneys, and you will very likely end up in court. In other words, if you and your divorcing spouse do not both make a significant personal investment in the collaborative divorce process, it is likely to end up being an expensive and time-consuming detour on the way to divorce court.