Many people are asking how COVID-19 affects child custody. If a parent is a healthcare worker, is their possible exposure to the virus a basis to change custody? What about the Governor’s shelter-in-place order? Do parents still have to do custody exchanges? If your ex lives out of state, is he or she still allowed visitation with your child? Does the answer change if the child must travel on an airplane to visit? Does spring break visitation continue until the children return to school? If one parent doesn’t practice social distancing, is that a basis to change custody? These questions present interesting dilemmas. And, at this point, it is still unclear how the courts will handle these issues.
It is likely that much of the court’s inquiry will center around the parent’s motives in bringing the motion. Some parents have real concerns about their child’s safety in these uncertain times. Some parents, unfortunately, will try to use this crisis as a basis to gain unfair leverage. Money may also factor in since child support depends on child custody. The courts should be very cognizant of such circumstances.
Nurses and doctors, and other essential workers, may be in an unfair situation. They may have to choose between their parental rights and the oath they take to care for their patients. That said, the child’s best interests must be the basis of every child custody decision. It is in the child’s best interests to limit his or her exposure to COVID-19. And for parents on the front lines of this pandemic, their families are also at risk for exposure to the virus. It is an undeniable fact. A change in custody may insulate the child and protect him or her from exposure to the virus.
An order changing the custody rights of a healthcare worker should be temporary only. There should be an automatic reversion back to the regular schedule as soon as practical. This leads to the question of what is practical- is it when there is a flattened curve (a few weeks)? Is it when the Governor reopens the state for business (a few months)? Is it when there is an approved vaccine (over a year)? The temporary order should have an automatic return to the regular custody order. At the very least, a review hearing should be scheduled.
No parent should be able to use their new status as primary custodian as a reason to change custody long term. The court should also ensure that appropriate communication between the parent and child is in place. This should include daily FaceTime calls. Make up visitation should also be ordered in these circumstances. Child support orders should not change due to the temporary nature of the court’s order.
In some cases, parents will attempt to use the shelter in place orders as a basis to deny the other parent visitation. The courts will likely take each case on a case by case basis. Absent some sort of extenuating circumstance where the child is in increased danger of becoming exposed to the virus based on the parent’s behavior or the child’s compromised immune system, the shelter in place order by itself should not be used as a basis to deny the parent visitation. There is no legal authority to support the assertion that the Governor’s shelter in place order supplants a valid court order regarding child custody exchanges. In other words, a parent may not deny the other parent visitation. That parent must first seek an order from the court modifying the custody arrangement based on COVID-19 concerns.
Out of state child custody arrangements present a more difficult issue. It may not be safe for a child to travel via airplane for visitation. In these circumstances, if the parents live within a drivable distance, meeting at a halfway point makes sense. There is also an argument that the airports and planes are relatively empty and there is no increased risk for airline travel. The location of the out-of-state parent may also be a factor. For instance, visitation in New York City, a COVID-19 hot spot, may present more risk than visitation in a small town. In these cases, the court may be forced to use a balancing test. The Court must weigh the out of state parent’s right to parent vs. the risk that the child may become exposed to the virus by traveling across state lines.
It would be best if the Governor’s order or an administrative order from the district court, clarified that the shelter in place order does not apply to travel for purposes of child custody exchanges. Until this happens, unfortunately, family court litigants, lawyers and judges are going to have to grapple with these unprecedented issues during a time when the courts are not operating normally.
The argument that spring break visitation should continue until regular school starts up again is unlikely to be a persuasive one. This is particularly true when distance learning is now in full swing. Courts are likely to issue orders that the parties should proceed with the regular custody schedule based on the normal school district calendar.
The case where one parent is refusing to abide by the Governor’s shelter-in-place order is no doubt going to generate some litigation. My advice to all my clients in high conflict custody cases is to abide by the Governor’s shelter-in-place orders. Co-parenting is key in these times. If your ex is voicing concerns about sharing custody through the pandemic, it would be wise to try to settle the issues outside of court.
Jessica H. Anderson
Divorce Attorney - Reno, NV