Coronavirus (COVID-19) Impact on Custody Schedule
Could COVID-19 disrupt your custody / visitation schedule? When is it no longer safe for your kids to travel to see the other parent?
Custody schedules can be maddeningly specific, down to the time and place of the transitions, with contingencies outlined for school holidays, religious holidays, birthdays, Mother's Day, Father's Day, and even snow days. However, lawyers have not thought to include pandemic clauses...until now.
As a parent, you are concerned about the coronavirus and want to do everything possible to safeguard your kids, yourself, and the rest of your family from this potentially deadly pandemic. But as a divorced co-parent, you also have the added pressure of needing to coordinate COVID-19 precautionary measures with your ex and his/her household.
Social Distancing in Joint Custody Situations
In a traditional family unit, creating an effective social distancing plan can be as simple as adopting rules for parents and children to follow both inside and outside the home. For divorced or separated parents, creating social distancing plans when children are going back and forth between two households is far more difficult and can lead to conflict.
Good Co-Parenting Relationships & What That Means During COVID-19
You must always co-parent in a manner that puts the best interest of the child first. While parents may have a court ordered custody schedule, parents are free to make reasonable adjustments to these schedules as situations arise.* However, any sort of modification should always be put in writing. The writing does not have to be formal, but it does need to be clear about every aspect of the order you are modifying and for how long.
Divorced or separated parents with good co-parenting relationships may be able to agree on social distancing measures that both households will follow. Coordinating a cohesive action plan is beneficial to the child(ren) and providing a routine that is structured, reassuring, and precautionary.
With The Coronavirus - What Happens at Your House DOESN'T Stay At Your House
In a joint custody situation, if you are choosing to continue custody / visitation exchanges, deciding how strictly you will follow social-distancing practices is a decision that needs to be made between both households.
Remember that your child's health is not the only factor that could affect him/her. What if your child(ren)'s other parent is in poor health? What if your child has a half sibling, grand-parent, or step-parent who for any reason is considered high risk or especially susceptible to the disease living in your ex's household? Under no circumstances should a lackadaisical attitude toward the other parent's home be the norm. While you may not consider these people family yourself, the reality is that they are family to your child, and a serious illness or death would most certainly impact your child negatively.
In a joint custody situation, if you are choosing to continue custody / visitation exchanges, deciding how strictly you will follow social-distancing practices is a decision that needs to be made between both households (taking all family members into consideration). If this is not something you feel you can do, then the best interest of your child(ren) would likely be best served by agreeing to a modified custody arrangement where the child(ren) stay in one household for now and any lost custody / visitation time would be made up once the crisis passes. But even this will require a certain level of communication and compromise.
Temporarily Modifying Custody Order Due to Covid-19
You can ask your ex to modify your custody schedule on a temporary basis, and propose alternatives such as:
- postponing in-person visits / exchanges for a period of time;
- documenting any custody / visitation time that either parent is losing so it can be made up after the crisis has passed or over the summer;
- scheduling regular phone calls, video chats and/or other virtual visits; and/or
- letters, postcards, and text messages.
It should be noted that all modifications to the schedule laid out in your custody order / agreement should be put in writing.* You can also engage an attorney to help you draft a temporary modification agreement. This will protect you in the event the other party reneges / claims they never agreed to it in the first place.
High Conflict Situations - What If You Can't Agree / One Parent Won't Engage?
But what if parents can't agree? What if one parent continues to work outside of the home in a high-risk area/job? What if one parent refuses to social distance and has friends, relatives, or others, coming in and out of his/her home? What if one parent continues to take the child(ren) on playdates or to public places?
Unfortunately, the social distancing and shelter in place orders do not directly affect custody orders, so until directly told otherwise by a government official, lawyer, or judge, you should expect to follow your current custody arrangement. Some state's court's have come out with statements stating that custody order schedules are to be followed. The government / courts in Virginia and the District of Columbia however have thus far remained silent on the matter.
If your ex is refusing to discuss the matter or reach a reasonable agreement with you and you have reason to believe that your ex's actions are putting your child(ren) in danger, then you (or your attorney) will need to ask a family court judge for an emergency temporary custody order. Courts do not like people to decide for themselves if they should comply with a valid custody order/agreement.
If you violate an existing custody order / agreement you could be risking being held in contempt, fined, put in jail, or even lose the custody / visitation you previously had. Absent an agreement only in a true emergency will the court excuse your actions if you choose to violate an existing order.
So what constitutes an emergency? Unfortunately, the situation we currently find ourselves in has never been seen before, so no one knows for sure what the court's will deem an emergency and lawyers are forced to use their best judgement and experience to advise you on a case by case basis.
One example of a situation that may be determined an emergency by the courts includes the following: One parent is following strict precautions to keep a high-risk child safe from COVID-19, like self-isolation, working from home, and getting groceries delivered, while the other parent continues to visit public places, or must work outside of the home, a judge may find that it's in the child's best interests to postpone or restrict visits with the less isolated parent for a period of time.
What Do The Court's Expect Co-Parents to Do During COVID-19?
First and foremost the Courts will expect that during this national crisis you behave reasonably. That means communicating with your ex about the very real risks this deadly pandemic poses to your child's life and attempting to come to an agreement about how to handle it. Attempting to take advantage of the situation and use his/her concern for the health of his/her child(ren) and other family members as leverage to get something you want - for example money, additional custody/visitation time, etc., will not be viewed favorably by the court.
The court expects you to coordinate COVID-19 precautionary measures with your ex in a way that the court would find reasonable. It is important to remember that your definition of reasonable and the court's may not always equate. That is why you have lawyers as objective representatives who can clue you in that while your actions may seem reasonable to you, to an objective party aka the judge, they will not.
Future Consequences of Refusing to Co-Parent During A Health Crisis
Once the crisis passes any refusal to work together could have a detrimental effect on pending / future custody actions. Denying another parent time when you could have cooperated with each other, particularly in the face of adversity, this is the kind of evidence a family law lawyer dreams about using against you in court.
Please note that this is for informational purposes only. To get answers that directly apply to your unique situation, we offer free attorney consultations.
*Note: Some custody orders do not allow parties to “self help” in this way, it is important to review your order carefully to determine if it allows parents to modify its terms by the agreement of both parties.
The AAML (Association of Family and Conciliation Courts) has provided seven recommendations for dealing with Custody and COVID-19 that all revolve around a theme of kindness and reasonableness:
DC Courts' Coronavirus Advisories:
The Virginia Supreme Court Order Declaring A Judicial Emergency In Response to COVID-19 Emergency:
The NCTSN (National Child Traumatic Stress Network) has provided parent/caregiver guidance to help families cope with COVID-19:
C&M Law Custody and Visitation COVID-19 Blog: