How to Handle Child Custody and Visitation During the COVID-19 Outbreak

Find out how the Coronavirus pandemic and social distancing orders may affect custody arrangements for your children.

March 20, 2020

The Novel Coronavirus and Social Distancing Rules

On March 11, 2020, the World Health Organization (WHO) declared the Coronavirus Disease 2019 (COVID-19) a pandemic due to its severity and rapid global spread. According to Johns Hopkins University, as of March 20, 2020 there were over 254,000 cases worldwide and 14,250 cases in the United States. Although the exact fatality rate of this novel coronavirus is not completely clear at this point, it is universally accepted that COVID-19 is highly contagious and can cause severe to fatal respiratory complications in many cohorts of people.

At this point in time, COVID-19 has affected every aspect of American life—from school, work, and travel to how we buy groceries and toiletries. Medical experts agree that social distancing is one way individuals can help slow the spread of this virus. According to WebMD, you should:

  • cancel events where lots of people gather, like concerts, festivals, and conferences
  • work from home
  • keep kids out of school
  • don't travel by plane or train
  • visit with family and friends by phone and computer instead of in person
  • stand at least 6 feet away from people
  • don't hug or shake hands with anyone except your immediate family, and
  • do your shopping, especially for groceries or drugstore items, online if possible. If you do have to shop in person, keep a 6-foot distance between yourself and others.

All across the United States, local and state governments are shutting down schools, issuing orders to close businesses, and asking the public to stay home. On March 19, 2020, California Governor Gavin Newsom issued a statewide shelter in place order, which is the first and the most restrictive order of its kind in the U.S.. Under this order, 40 million individuals living in the State of California must stay home or at their place of residence except for when they must leave to meet essential needs.

Essential services will remain open, including:

  • gas stations
  • pharmacies
  • food: grocery stores, farmers markets, food banks, convenience stores, take-out and delivery restaurants
  • banks, and
  • laundromats/laundry services.

How do Social Distancing Rules Affect Custody Arrangements?

Within a family unit, creating an effective social distancing plan can be as simple as adopting rules for parents and children to follow within their home. But for divorced or separated parents, social distancing and staying healthy when children are going back and forth between two households is far more difficult.

Divorced or separated parents with good coparenting relationships may be able to agree on social distancing measures that both households will follow to meet their children’s best interests. And for parents of children who are high-risk for COVID-19, it’s essential to reach clear agreements on how to keep their children safe. But what if parents can’t agree? What if one parent continues to work outside of the home in a high-risk area? What if one parent refuses to social distance and has friends (or others) coming in and out of the home, or continues to take the children on play dates or to public places?

The social distancing and shelter in place orders do not directly affect custody orders, so you should expect to continue following your current custody arrangement. But if you believe sending your child to your ex’s home would put your child’s health or safety at risk, you should speak to your child’s other parent and try to agree on a modified custody plan. If that fails, you’ll need to contact a local family law attorney and/or see if you can obtain an emergency temporary child custody order from your local family court.

Children and COVID-19

According to medical experts, individuals with asthma are at a higher risk for getting very sick or developing respiratory complications related to COVID-19. Despite signs that children are fending off the virus well, experts caution that children with underlying chronic health conditions should still be considered high-risk for developing complications from COVID-19. “Infants and children who are immunocompromised/suppressed or have other cardiac, metabolic, or respiratory problems are also at higher risk of complications from COVID-19, just as they would be from other infections.”

If your child has asthma or an underlying medical condition that makes your child more susceptible to COVID-19 or resulting respiratory complications, you and your child’s other parent should speak to your child’s doctor and create a plan you can all follow to keep your child safe.

If your ex has flouted social distancing rules or works in a high-risk environment, and you’re worried about your vulnerable or immunocompromised child getting COVID-19, speak with your child’s pediatrician for advice. You can ask your ex to modify your custody schedule on a temporary basis, and propose alternatives such as:

  • postponing in-person visits for a period of time (depending on what your child’s doctor says)
  • scheduling daily phone calls and/or “virtual visits” using FaceTime or Zoom
  • having your ex come by in-person to say hello, but keep a safe distance from your child if your child’s doctor thinks this is safe (some family members are visiting vulnerable relatives through windows while talking on the phone) and/or
  • sending letters, postcards, and text messages.

And if your ex is currently sick with a cold or flu, speak to your child’s doctor right away—postponing visits may be the most reasonable course of action. It goes without saying that if your child's other parent has tested positive for COVID-19, he or she will be hospitalized and/or asked to self-quarantine, and visits will likely have to be postponed.

Emergency Custody Orders

If your child’s other parent refuses to engage with you or follow medical advice, and you believe your child’s health is at risk by visiting the other parent, you should contact a local family law attorney right away. A letter from your lawyer may be enough to encourage your ex to agree to a modified custody plan. If your ex still refuses, then you (or your attorney) will need to ask a family court judge for an emergency temporary custody order.

Custody decisions in every state—including emergency requests—are made by considering the child’s best interests. If, for example, a custodial parent is following strict precautions to keep a high-risk child safe from COVID-19, like self-isolation and working from home, while the other parent continues to visit public places or must work outside of the home, a judge may find that it’s in the child’s best interests to postpone, limit, or restrict visits with the noncustodial parent for a period of time.

Most federal and state courthouses have temporarily closed for non-essential cases in order to slow the spread of COVID-19. For example, on March 16, 2020, the Superior Court of California, for the County of Marin issued an order stating that it would be closed for all non-essential matters through April 7, 2020.

However, Family Law courtrooms remain open for “emergency restraining orders and other emergency orders.” These emergency hearings can also be held by phone. Check with your attorney or local court website to see if your courthouse remains opens for emergency custody issues.

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