Child Custody, First Responders and COVID-19

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As this excellent article in the New York Times details, the novel coronavirus has created a very gut-wrenching situation for divorced parents, especially ones who work as health care providers or first responders – individuals more likely to come in contact with someone who has the virus. Should parents have a plan? Should the courts get involved?

Different states and counties have used different approaches. Some counties have insisted that the child remain solely in the physical custody of the parent with whom the child resided at the onset of a stay-at-home order. But most states have insisted that parents continue to abide by the child custody order in place.

If a parent works as a doctor in a hospital, should that parent automatically cede temporary custody to the other parent? The argument in favor of this position goes like this: because the parent works in an environment with a higher risk of contracting the virus, that parent should not place the child (or the other parent) at risk of exposure. While this argument may have some superficial appeal, it hardly passes for a thorough answer to a complicated question. If it did, parents who work in labs with dangerous chemicals or transport hazardous waste would never have custody. Risk in a vacuum does not mean probable or even somewhat possible.

Some health care providers working in hospitals may not have any contact with COVID-19 patients. For example, a nurse who works in the neonatal wing of a hospital may have no higher risk of exposure to the virus than someone working from home. Why? Because the nurse will have personal protective equipment (PPE) and limited contact with other people because hospitals have already limited access to its floors. Hospitals check everyone entering the hospital for a temperature, and they also have begun separating emergency rooms into virus and no-virus symptoms to further minimize risk. If health care providers are having limited access and taking all necessary precautions, they would seem no more at risk going to work than any parent who has to go to the grocery store.

By contrast, some health care providers will be in the emergency rooms or the virus wards and have a likelihood of treating corona positive patients. For these parents, the risk of exposure does increase, even with PPE. However, that does not mean that these parents should have no contact with their children, though the burden of proving the lowest possible degree of risk shifts to that parent. In these situations, we have seen parents working together to structure some form of sensible temporary plan – allowing the parent not working in a hospital to have physical custody but assuring that they work together as parents to give the children unlimited access through FaceTime and telephone talks and other safe options, with the guarantee that every day missed in the schedule will be made up when the risk passes. Clearly, an arrangement between the parents, perhaps with the assistance of their attorneys, would be the best solution in this difficult choice. Parents who are doctors or nurses in these wards have a good idea of their risk of exposure, and they would not want to expose their children or the other parent or the more vulnerable family members that may reside in their respective households.

Some parents have already filed for temporary full custody and had hearings before judges. One judge in Florida recently awarded temporary full custody to the parent who is not a doctor because the doctor worked in the emergency room. It is unclear whether the judge took a full account of the true risk of exposure to that parent. It is also unclear if the judge assured the doctor-parent that she would receive compensatory time at a future date.

These are not simple cases with simple answers. We live in scary times, particularly for children, and these children will feel only more anxious if they suddenly cannot see one parent because of the risk of exposure. That child will now worry that one parent could get sick and die. We need to have a less dramatic and more empathetic approach, something outside of a courtroom. Parents should take advantage of different resources, like therapists and parent coordinators, and structure situations that fit their particular family rather than immediately rushing to court.

We live in a moment where community spread of a highly contagious disease is growing, though we hope it will start to dwindle. But the virus will not just disappear. We all will have to deal with some degree of risk for months to come. We cannot say one parent will be less at risk than another in all situations. We need measured judgment, case-specific, not bright lines.

What we hope will serve as a saving grace in this situation will be widespread universal testing – both for the virus itself and for the antibody test to show immunity. If a parent has immunity, the child will not be at risk. If the child has the antibody, the child is not at risk. If a parent tests negative for the virus, that should ease fears of exposure.

We are in uncharted waters. But we do know that no parent should see this pandemic as an opportunity to deprive a parent of custody, particularly ones who may be the ones we depend on to save lives.

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

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