Child Custody and COVID-19

On Behalf of | Apr 13, 2020 | Child Custody, COVID-19

COVID-19 has created chaos for many divorced and separated people who have children.  The New York Times recently wrote an article called: New Battle for Those on Coronavirus Front Lines: Child Custody.

Cases are now erupting all over the country in which one parent is seeking to obtain sole custody or terminate parenting time orders when the other parent is a health care worker. Some courts are granting these motions, others are not. Some courts are closed and will not entertain such emergency motions, even to be heard by phone or videoconference, (Hamilton County, Ohio for example) while other courts are scheduling emergency hearings to take place the following day. Some courts are granting these motions. Others are stating that unless the health care worker parent has the virus, parenting time must occur. Health care workers themselves are struggling to make the situation work.  Children are experiencing stress as a result of not seeing their friends and not being in school and perhaps not understanding what is happening in the world around them. Not seeing a parent adds significant stress to a child.

There are no general guidelines in place anywhere about how to address these issues. Some courts in other states have permitted the “primary residential parent” to take physical custody of a child immediately after a stay-in-place order and retain custody of the child under the order is lifted. This order applies whether or not the other parent is an emergency worker. This is an extreme and punitive order. Other courts have stressed that both parents need to continue to spend time with the children unless a parent is self-quarantining.

Being a health care worker on the front lines of this battle is extremely stressful. Not being able to see your children adds additional significant stress to the situation.  The American Academy of Matrimonial Lawyers (AAML) and the Association of Family and Conciliation Courts (AFCC) have issued general joint guidelines regarding parenting during the pandemic. These guidelines do not include recommendations that people withhold children nor do they recommend that parenting not take place for the health care worker.

Most health care workers adhere to strict protocols related to safety measures for their own health and the health of their families. Obviously, health care workers who are not divorced and have children must take care prior to entering their homes to minimize risk.  The health care workers who are divorced are presumably taking those same safety measures. See attached “Protecting Your Home for Health Care Workers.”

The issues related to parenting are not limited to health care workers. Some parents do not approve of how the other parent is parenting during the crisis. For example, a parent might not approve of the other parent allowing the children to play with other children, have people to their home or travel out of town.  One parent might not be following the stay-at-home strictly enough to satisfy the other parent. How will these issues play out and how will they get resolved? Will parents later be found in contempt of court for violating court orders when parents argue that they had no access to the courts and were in fear for their children’s safety? The situation has certainly given parents in high conflict cases who do not co-parent well in the best of circumstances the ability to interfere with the other parent’s parenting time.