COVID-19 and Custody Orders

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Since the onset of the COVID-19 outbreak in our community, we have had more people inquire about one subject above all else: do I have to comply with the custody schedule in my dissolution or paternity judgment? Most parents have called not out of any malice or gamesmanship, but rather seek guidance on protecting their child or others in the household from catching the virus.

The question has both an easy and not so easy answer.

As most of you are aware, we live under various Stay At Home Orders intended to limit exposure to the virus by keeping everyone but essential businesses closed and staying at home. We are allowed to go out to seek medical care, obtain groceries or medications, and go to parks. But if we are not employees of an essential business, we should otherwise stay home.

However, all of these stay at home orders address custody decrees. For example, the St. Louis County Stay At Home Order, in Section III.A.10, defines an Essential Activity as “necessary care for a dependent in the person’s legal custody, including acts essential for a parent with legal custody to transfer the physical custody of a child.” Also, the same Order, in Section III.J.6, defines “essential travel” as “travel required by court order.” Hence, under the Stay At Home Order, the County anticipates that parents will continue to exercise physical custody in line with all existing court orders relating to custody.

That, of course, is the easy answer.

The situation can be complicated, however, by certain facts on the ground. For example, if a child is in the physical care of parent A and either the child or another member of the household begins to exhibit symptoms associated with COVID-19, it would not make sense to potentially spread the virus to the household of parent B. Consequently, it might mean that the child stays in the 14 day quarantine at the house of parent A. Another example: if one parent has pre-existing health conditions that make that parent more vulnerable to serious illness should that parent contract the virus, it may be necessary to change custody arrangements to protect that parent. The same may also apply if a grandparent regularly stays with one household.

These are easier answers that have an immediate appeal because of the severity of the virus and its spread.

But what happens if a parent or a child does not want to go from one house to the other and they do not have the issues cited above? We have fielded many calls in this category since the Stay at Home Order went into place, and each case requires careful consideration based on the facts. But we can make some important general observations.

First, we all are living in a stressful time. For parents who do not get along well in the best of times, we can expect COVID-19 to make matters worse. It will take all of us to put our best selves forward to work together in this time. We might have to make short-term sacrifices to keep everyone safe and sane.

Second, all parents should keep track of time missed. A journal is a great idea for this type of calendaring, and the parent can note if any particular reason was given.

Third, if you as a parent feel the other parent has not given a sufficient reason, make your views known respectfully and clearly in writing by email to the other parent so you document your response.

Fourth, see if you can work with the other parent to agree to a form of compensatory time on a voluntary basis (i.e. outside of court) so that when the virus passes and we return to normal, the parent who lost time will have additional time.

Finally, remember that you do not have access to the courts at this moment. Yes, you and your lawyer could file family access motions or motions for contempt, but the courts are closed to hearings except in limited circumstances, and we do not know when courts will begin to hear regular family access dockets again. As a result, the legal process will not provide immediate relief.

We live in difficult and extraordinary times. We hope that everyone will stress safety first and be as considerate as possible. We hope parents on both sides of the family will act reasonably and put the children first in these anxious times. If we all do that, we will all get through this with the least disruption to family custody issues.

If you have questions about the coronavirus (COVID-19) and custody orders, contact us – we can help.

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