Custody Disputes and COVID-19

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Divorced parents have had to get innovative in the COVID-19 era, as they need to address concerns related to exposure and shelter-in-place orders. Complicating matters, courts have not been highly accessible because of the pandemic. What should parents do?

In Missouri, both the supreme court and local counties have issued orders that require parents to continue to abide by parenting plans, including transfers for physical custody. For all parents under a custody order, this remains your gold standard.

What if a parent has concerns about potential exposure through the other parent?

Unless the other parent is a front-line health care worker commonly dealing with infected individuals, it is hard to argue that any one parent is more at risk of exposure than any other, so long as that parent continues to go to the grocery store or to Walmart or the hardware store or a drive-thru. Indeed, some people still working in essential offices may be more at risk because those offices may be more lax in precautions, social distancing, masks, and cleaning.

Despite this rather obvious point, parents continue to argue about relative risk and using that as a means to alter custody. For the most part, courts are not taking the bait.

We have reached a point in the pandemic where states are reopening at different degrees and as a result, children will become more exposed by seeing friends, going to swimming pools and other outdoor activities, even day camps. The potential for spread can seem quite high in some circumstances; parents will need to exercise judgment and do so in consultation with each other.

How much risk are parents willing to assume? Will a court jump in and punish a parent who takes too much risk? We do not yet know the answers to these questions, but we will soon find out.

The best advice remains for parents to work together and agree on each step forward. If some risk is agreed upon, it should be in writing. If one parent is more at risk and loses custody time, a compensatory plan must be in writing.

Some questions clearly remain hard, and for that, parents should consult their attorneys for assistance. Mediation may be a good option in lieu of court docketing. Some states have used judges as mediators on teleconference rather than an in-person docket, and that might happen here in Missouri.  

We remain in unchartered waters, but we have more information today than we did in March. We have CDC guidelines and months of experience living with restrictions.

Parents should put safety first and the interests of the children first. Parents should use their best communication skills now, and have compassion for each other in these difficult times. Courts should be a last resort, if only for the length of time it may take to get an answer when it may be a moot point by the time it gets heard. Above all, parents should avoid drastic actions that could put a child at risk just to spurn the other parent.

The questions judges will face could be some of the most unusual in their careers. Because we cannot know all these answers in advance, we know the best advice is to use common sense first and solid communication second. Joint decisions remain the best decisions.

If you have questions about custody disputes and COVID-19, contact us – we can help.

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