Addressing Coronavirus Custody Concerns
For those parents who are dealing with high conflict custody situations, the Coronavirus has brought on a whole new set of unforeseen issues and concerns. The AMWOC inbox has been flooded with questions pertaining to visitation schedules, parenting exchanges, and stories of custodial parents who are already exploiting the Coronavirus outbreak in order to withhold parenting time or attempting to micromanage visitation time. After consulting several family law attorneys regarding your questions, I've decided to compile everything I've learned into one post.
Illness
1) If you test positive for Coronavirus or suspect that you may be infected and you've recently had contact with your children, it is your duty to disclose your status to the other parent. Failing to do so is irresponsible, and could potentially put many people in danger. *There are currently no Coronavirus disclosure laws in place, but that may change if the outbreak becomes critical.
2) A custodial parent may be temporarily able to withhold visitation if you have tested positive for Coronavirus. Once you have recovered and do not pose a threat of infection, regular parenting time should be reinstated. If you have recovered and parenting time is still being withheld, there is no longer a justifiable reason to withhold visitation and you may have grounds to file an emergency motion to enforce the custody agreement.
3) If the custodial parent has been diagnosed with Coronavirus, you may possibly have cause to file an emergency motion for temporary custody. Consult an attorney.
4) If you test positive for Coronavirus or you suspect that you may be infected with Coronavirus, it is your ethical responsibility to forfeit your parenting time and quarantine yourself.
5) If you test positive for Coronavirus while the children are with you, you should immediately seek medical consultation to determine if you are allowed to exchange the children, or if they must quarantine alongside you. If you are instructed not to exchange the children and choose to withhold them, you may still face legal penalties. During this time, you must constantly keep the other parent informed, stressing that you absolutely intend to resume exchanges as soon as possible. Document all communication in case you have to present it to the Court, and obtain proof of illness such as test results. There is case law pertaining to parents being held in contempt of Court and penalized for withholding visitation due to illness (the child's or their own), even with the presence of a doctor's note and a legitimate illness. If you find yourself in this position, you must proceed with extreme caution and consult an attorney as soon as possible.
6) Review your parenting agreement to determine if you are entitled to make-up parenting time due to illness.
7) If you believe that your child has Coronavirus, and you do not have joint medical decision-making abilities, do not take the child to get tested without consulting the custodial parent first. If the custodial parent refuses to have the child tested or quarantined, and you have legitimate reason to believe that the child has the virus (such as a high fever or direct exposure) and decide to get the child tested anyway, you may find yourself in court. Proceed with caution and make sure this is a fight worth picking.
Parenting Time
8) Withholding visitation due to general Coronavirus concerns is not a valid reason and may result in legal ramifications.
None of these reasons for withholding visitation will hold up in court:
"You were recently on an airplane"
"You travel for work"
"Someone in your neighborhood was diagnosed with Coronavirus"
"Visitation is suspended because of the Coronavirus"
"There is a Coronavirus outbreak, so I'm not giving you the kids"
Any parent attempting to deny visitation by using any variation of the above, risks being held in contempt of Court and penalized.
If you find yourself in a situation where the custodial parent is withholding visitation for similar reasons, you have grounds to file an emergency motion to enforce the custody agreement.
9) Although we are all experiencing lifestyle changes due to the Coronavirus, the "Standard Possession Order" is still in effect.
This means that regardless of what's going on around us, the regular parenting schedule is still in effect, and should continue to be followed.
10) Continue vigilantly following the parenting plan. There is no need or legal justification to alter the parenting plan at this time.
11) If your child is scheduled to fly for a visit and the custodial parent refuses to let them fly, do not forfeit your parenting time without a fight. You may not be able to force them to allow the child fly during this time, but you can come up with alternatives. Suggest alternate forms of transportation. Offer to drive or to pay the expense they will incur to bring the child to you. Review your agreement to determine if there is a provision in case air travel is not possible. Exhaust every option before giving up your parenting time. If all else fails, ask for make-up time. If you have presented reasonable alternative options and the custodial parent continues to deny your right to visitation, you may have grounds to file an emergency motion to enforce parenting time. Consult an attorney before proceeding.
12) As I write this, there is currently no mandatory government quarantine in place, although social distancing is strongly recommended. As long as your parenting time does not come with specific restrictions such as supervised visitation, religious requirements, travel limitations etc., the custodial parent does not have the right to tell you where you can or can't go with the children, micromanage your parenting time, or impose any new "rules" that you must follow.
Do not allow yourself to be dragged into pointless arguments about Coronavirus safety with the other parent, or feel like you have to justify your actions. As long as you are following the terms of your parenting agreement, you have nothing to worry about. The only thing that dictates the terms of your parenting time with the children is a signed Court order or a legally binding arbitration agreement.
School Closure
13) School closure due to Coronavirus does not qualify as holiday or vacation time and is not subject to holiday or vacation rules. The regular parenting schedule and rules still apply.
14) If the children's school declares an "extended spring break" due to Coronavirus, it does not extend a parent's period of possession beyond the time designated for spring break according to the school's academic calendar. The academic calendar and parenting schedule must still be followed. Do not allow yourself to be bullied into altering spring break parenting time. Most of the statements released by Courts across the country specifically address this issue and state that "extended spring break" does not extend spring break parenting time.
15) If your parenting time follows the academic calendar, continue following that schedule.
Legal Stuff
16) Courts may be closed or limited during this time, and may only be willing to put emergencies on the docket. Anticipate that all non-emergency trial dates and hearings will be cancelled or postponed for the foreseeable future. This may leave your case in limbo for a while and that is a terrible feeling, but complaining about it won't change anything. You just have to buckle down and have patience!
17) If you have a signed Judgement of Divorce and you need to bring an emergency motion, but your Judge is unavailable, read through the Judgement of Divorce and look for the paragraph that addresses jurisdiction. This paragraph will usually be close to the bottom. If the paragraph states that only one Judge or one Court has EXCLUSIVE jurisdiction, you are out of luck and your case must be heard in that Court. If the paragraph contains the word "CONCURRENT or "CONCURRENTLY", that means you have options. For example, if your judgement of divorce states that Supreme Court retains jurisdiction concurrently with Family Court, that means you are able to file a motion in either Supreme Court or Family Court in your county.
17) Child support and alimony payments are still in effect, and cannot be altered or discontinued without Court approval. Failure to pay child support and alimony may result in fines and penalties, as well as legal action. If you find yourself in financial hardship due to the Coronavirus, you must file a child support modification before altering or discontinuing child support.
and last but not least....
18) Pick and choose your battles wisely during this time in regards to involving law enforcement in domestic disputes. Do not call the police for frivolous matters, as they need to focus their attention on real emergencies.
Conclusion
The most important thing to remember during the Coronavirus outbreak is that you still have the same parental rights as you did before the outbreak began. Do not allow anyone to use your ignorance and uncertainty in order to mislead you into giving up your rights. Do not allow anyone to micromanage your parenting time with your children.
Your best weapon to combat malicious intent to interfere with your parenting time, is knowledge. Know your rights, and assert yourself in a polite manner. Our motto around here is "email is not a courtroom". This means that you do not need to respond, defend yourself, or justify your actions to anyone. You do not need to engage in any unnecessary communication or debate. If there is a legitimate issue, they can bring it to court. In the meantime, only respond when it is absolutely necessary. The best way to deal with a difficult co-parent, is to deal with them as little as possible. The Coronavirus is going to change our way of life for a while but that does not give anyone permission to walk all over us.
Good luck, and stay safe!
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