Custody Disagreement During the Time of COVID-19

Custody agreements between parents remain a sensitive subject at the best of times. You would think with something like a catastrophic event like a worldwide pandemic, ex-partners should be able to put differences aside in favor of keeping everyone safe, but alas…some differences of opinion on parenting aren’t so easily overcome in this uncharted territory.

If you are a parent with a custody agreement in place, depending on where you are living in California (and the country), you are expected to keep to that custody arrangement…even if there is still a shelter-in-place order in effect there. This means that without proof of danger to you, or your children, you must still make the trip back and forth with the kids from home to home during a time when many people aren’t even comfortable going to the market or the doctor. Usually, exes who communicate well will arrange an alternative between themselves, wherein one parent takes sole custody of the children while the other maintains regular contact through scheduled Zoom meetings and phone calls until the crisis has passed. In this case, everything is easier than the alternative.

What happens when parents do not see eye to eye on what is the safest arrangement for the kids AND parents and any extended family that may be in residence at either domicile? This can mean a range of things from not observing social distancing while at one parent’s residence, or not being made to wear masks when the situation calls for it. More concerning, what if one parent is more likely to be exposed to the COVID virus, increasing the possibility of spreading the disease to kids, former spouses, or any live-in relatives?

Firstly, we suggest not getting into a shouting match where the kids might overhear. Contact an attorney or mediator in your area to try to arrange parameters that everyone can adhere to so that all stay safe. Sometimes, just having impartial parties hash out the details of what is reasonable is enough to make the solution clear without emotional reactions muddying the waters.

If mediation is not an option or proves unsuccessful, you may have to go in front of a judge, probably by video conference. This can be tricky, again, depending on where you live. Some courts, like the state district court in Davidson County, Tennessee State, “that the “primary residential parent” should take custody of the child within four hours of a shelter-in-place order and retain sole custody until the shelter-in-place order is lifted.” That is easy to interpret and enforce. However other courts in other districts are more stringent in their obedience to the original ruling.

For example, the Santa Clara County Superior Court Family Division issued a Notice Child Custody and Visitation Policies During COVID-19 Public Health Emergency which states “The COVID-19 pandemic is not, by itself, a reason to deny visitation or parenting time. Nor does the requirement to shelter-at-home justify, by itself, the denial of visitation or parenting time. Unless otherwise ordered by the court, parents are considered fit to care for their children and make decisions regarding day-to-day aspects of parenting while the children are in their care. Parents are expected to follow the most current public health orders and directives regarding social distancing and sanitation-related measures, such as frequent hand washing.”

An example that may allow for a temporary change of the custody order is if one parent is following national guidelines for COVID safety at home to keep a child safe that is high-risk, while the other parent can be shown to have been exposed to someone with confirmed infection, a judge could advise it is in that child’s best interests to temporarily switch or postpone visits until the proper quarantine time has passed. This is also the case if there is another individual in a residence that may pose a risk or infection spread, like an aging grandparent who has recently been in a retirement community.

Most courthouses in the state of California were closed early during the pandemic and are beginning to reopen gradually, but you can still consult your attorney to find out if family courts in your area are holding emergency hearings by video or phone conferencing. Individual court systems will be adjusting policies and scheduling as the pandemic progresses.