Either voluntarily or through court order, most separated and divorced parents have established parenting plans that outline custody and visitation obligations. But what happens to these orders when a global pandemic rages through our communities? Can parents unilaterally refuse to engage in custodial transfers or keep the other parent from visiting while a government shelter-in-place order is in place?
Anecdotally, family law attorneys report that the single biggest issue for their clients right now seems to be whether the regular custody and visitation schedule should be enforced. Clients call to ask questions like, “What if my co-parent lives in a hotspot like New York City? Can I prevent my child from going there?” or “My co-parent is an essential worker/health care provider/idiot who is still taking our child to the playground. Can I keep my child away so she doesn’t risk getting infected or bringing the virus back to my house? So that I can punish my co-parent for her irresponsible behavior?” or “What if the parenting order conflicts with the shelter-in-place order in our state?” Some parents even ask, “My co-parent and I have a bad relationship. Can he or she keep my child away from me because I live in a city with a high rate of COVID-19 or because he or she says I don’t disinfect things properly?”
In most states, the answer is simple: custody and visitation orders remain in place. If, under an existing agreement, a child is supposed to spend 50% of her time with each parent, then each parent can assert the right to this custodial time, even if her potential risk of acquiring the virus (and passing it on) is much higher than her co-parent’s. While few courts have published opinions on the matter, most states have issued gubernatorial or administrative orders which state that the only way legally to modify an existing court order is to request a family court hearing. And, in many instances, family courts are only open for emergency matters. Potential exposure to coronavirus? Not usually an emergency, says attorney Laura S. Hayes of Fox Rothschild. “The substantial majority of [Texas] judges do not consider it an emergency if the other parent is potentially exposing a child to COVID-19 due to violations of lockdown/stay at home orders at this time.”
These issues are so universal that Association of Family and Conciliatory Courts and the American Academy of Matrimonial Lawyers have issued a joint statement about custody and visitation during the pandemic. One of their top recommendations? “BE COMPLIANT with court orders and custody agreements.”
But why should parents using poor judgment be allowed custodial time with their children? The answer lies in the concept of “legal custody,” which allows both parents (in most situations) the power to make decisions and care for their children as they see fit. As one Washington state court explained on its website, “You may feel the other parent is not following social distancing guidelines or not following a structured schedule that you have set up in your home, [but] this is not a basis to withhold parenting time. As a general rule, each parent is able to use their own good judgment about what to do when they have the child, so long as their actions are not violating the law.”
In short, while the pandemic has altered our way of life, it hasn’t changed our co-parenting obligations regarding custodial time and visitation. Only time will tell whether children and extended families will be adversely affected—through infection with the virus or other harm—by these policies.
Lisa Tucker is an Associate Professor at Drexel University Thomas R. Kline School of Law. She is the author of numerous law review articles about family law, the Supreme Court, and legal education; she conceived of and edited the forthcoming Hamilton and the Law: Reading Today’s Most Contentious Legal Issues Through the Hit Musical.