Child Custody and Visitation Legal Issues During the COVID-19 Outbreak
Following a divorce or the end of a relationship, the parents of a child typically share custody of the child. In most cases, each parent will spend some time with the child as provided by a fixed schedule. During the COVID-19 outbreak, though, parents may be concerned about whether they should continue to comply with a custody arrangement if it conflicts with a shelter-in-place order that applies to their area. Shelter-in-place orders do not directly override child custody orders. Failing to comply with a child custody order can result in harsh outcomes, such as a finding of contempt and a reduction of parenting time. However, parents are free to agree on a temporary modification to parenting time. A parent also can ask a judge to order a modification, although this option may depend on whether family courts in their area are open to hear these matters.
Sometimes a parent may fear that their child may be exposed to the coronavirus because their other parent faces a high risk of exposure. For example, people who work in the health care industry or law enforcement may be more likely to contract COVID-19 than the general population. While medical experts believe that children generally face lesser health risks than adults if they contract the coronavirus, these risks should not be discounted entirely. Recent evidence suggests that some children may develop serious complications related to COVID-19 that are not yet fully understood. If your child has a pre-existing condition that would make them more susceptible to complications, you may want to seek an adjustment to your child custody arrangement if their other parent has a high risk of exposure, or if their other parent suspects that they have been exposed or is exhibiting symptoms of the coronavirus.
Temporary Modifications to Child Custody
Some parents have asked a court to prevent the other parent from having any contact with their child, due to that parent’s elevated risk of contracting the coronavirus. For example, a Florida doctor recently faced a custody challenge from her ex-spouse on this basis. While the lower court cut off the doctor’s right to spend time with her child during the COVID-19 outbreak, the doctor prevailed on appeal. As this case shows, many courts are reluctant to completely prevent a high-risk parent from seeing their child for the duration of the pandemic.
However, a court may temporarily reduce parenting time if a parent fails to take reasonable precautions to protect the child’s safety or acts in a way that would endanger the child. Each situation is unique and highly fact-specific, and family courts have not adopted a consistent approach. Some courts require showing an extreme risk to the child to obtain a modification. At the opposite end of the spectrum, other courts may allow the parent with primary residential custody (the majority of parenting time) to retain sole custody of the child until a shelter-in-place order expires. As with any change to a custody arrangement, the court will focus on the best interests of the child. This is a flexible standard that gives a judge significant discretion.
Rather than going to court, parents in this situation may want to negotiate limited changes to parenting time. For example, they might agree to shift parenting time allocated to a high-risk parent to a specific time in the future. This would allow the high-risk parent to make up for the time missed during the COVID-19 outbreak. The parents might agree to set up regular Zoom interactions and phone calls between the high-risk parent and the child. If the parents cannot agree on an arrangement, they can seek assistance from a mediator or a family law attorney. Crafting their own arrangement allows parents to avoid the stress and uncertainty of asking a judge to reallocate parenting time.
