On March 11, 2020, the World Health Organization declared COVID-19 a pandemic due to its severity and rapid global spread. Johns Hopkins University created a COVID-19 map that tracks the number of cases worldwide. On March 20 there were 254,000 total cases and 14,250 in the U.S.. As of April 3—just two weeks later—confirmed cases exploded to over 1,080,000 worldwide and 266,671 in the U.S..
The COVID-19 outbreak 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 we can help slow the spread of this virus.
All across the country, local and state governments are shutting down schools and businesses and asking the public to stay home. On March 19, California Governor Gavin Newsom issued a statewide shelter-in-place order —the first and the most restrictive of its kind. Under this order, 40 million Californians must stay home, except for when they leave to meet essential needs.
Today, most states have issued similar orders—316 million people in at least 42 states, 9 cities, the District of Columbia and Puerto Rico are being urged or ordered to stay home.
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, staying healthy when children are going back and forth between two households can be challenging.
The social distancing and shelter-in-place (SIP) rules don't directly affect custody orders, so you should continue following your current custody arrangement unless you and your ex agree to an alternative plan or a judge changes your order.
Courts are making it clear that denying visitation during this time won't be tolerated and may result in contempt of court and sanctions.
But some parents might have valid concerns which could justify a temporary change to custody, such as:
According to medical experts, COVID-19 is highly contagious and can cause severe respiratory complications, especially in people with asthma. And 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, is immunocompromised/suppressed, or has another underlying medical condition that makes your child more susceptible to COVID-19 or resulting respiratory complications, you should speak to your child’s pediatrician for advice and talk to your ex about how to reduce the risk to your child in both homes.
If you believe that sending your child to your ex's home could pose a risk to your child's health, you can ask your ex to agree to a temporary change to custody, and propose alternatives such as:
But what happens when parents can’t agree? If you can't resolve these issues on your own, you should contact a local family law attorney or mediator for advice—most family law attorneys are still working and available for consultations by phone or via virtual meeting services, like Zoom. You can also check your local or state court websites, as they are beginning to issue guidance on custody issues.
If your child's health is truly at risk, you may want to ask a judge to intervene. You or your attorney may be able to obtain an emergency temporary child custody order from your local family court.
There are no universal rules for family law courts to follow across the country, so custody disputes in the time of COVID-19 are uncharted territory for divorced or separated parents and family law attorneys.
Some family law courts have explicitly stated that families should continue following custody schedules, even if they're under a shelter-in-place order—these courts won't modify custody except in extreme cases. For example, the San Francisco Superior Court Unified Family Court issued a Notice of Emergency Family Court Operations, which states: "ex parte requests to change child custody or visitation orders will not be granted absent a very strong factual showing of imminent danger or severe detriment to the child." In other words, you must show a high risk to your child.
If, for example, one 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 has been exposed to someone with confirmed COVID-19, a judge may find that it’s in the child’s best interests to modify visits for a short period of time and schedule make-up visits for a later date.
Other courts are at the opposite end of the spectrum. According to the state district court in Davidson County, Tennessee 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.
Most federal and state courthouses have temporarily closed for nonessential cases in order to slow the spread of COVID-19. Check with your attorney or local court website to see if your courthouse remains open for emergency family law requests. As COVID-19 continues to spread and courts simultaneously try to serve the public, notices and policies will be revised frequently.
Updated April 16, 2020