You’re the possessory conservator of your children and it’s Friday morning. You’ve just had your kids overnight for your Thursday period of possession, and the kids are sick.  No school for them that day. You’re willing and able to stay home with the kids to care for them, and it’s your weekend possession beginning later that day after school anyway.  Can you stay home with your kids?

It depends. First and foremost, you need to read your order carefully. It likely contains a notice provision that states that if the children are not returned to school the next day, that you must notify the other conservator immediately.  Also, if your period of possession ends at the time school begins, then from the time school begins until the time it ends that day is not your period of possession. The children must be returned to the other conservator.  Look for language in your order that states all periods of possession not specified as yours are the other parent’s periods of possession by default, or something to that effect.

It may be that a text or email to the other parent to obtain their agreement (get it in writing!) for you to keep your kids that day will solve things. However, if the other parent does not agree, you will need to return the kids to him or her at the time school would resume for the day and then pick them up later at the time school ends at his or her residence.  Failing to notify the other parent, and failing to return the children to the other parent, may subject you to an enforcement action.  It’s not worth it.

There is some disagreement among practitioners on this issue. Some feel that the possession automatically reverting back to the primary conservator is nonsensical.  There is perhaps an argument to be made here that the change is not in the child’s best interest, especially if the child is sick. However, it is still safer to stick to the provisions as they are contained in your order rather than risk an enforcement. Also, if you are the primary parent and your child has not been returned to you in this type of situation, you may want to have a conversation with the other conservator prior to filing an enforcement. Judges would much rather parents work these things out than waste the court’s time.