COVID-19 is spreading rapidly across the globe. 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 14—less than a month later—this number has exploded to almost 2 million cases worldwide and 610,000 in the U.S..
It's universally accepted that social distancing can help slow the spread of this virus. As a result, all but 7 states have issued shelter in place orders, which means at least 316 million people are being urged or ordered to stay home.
Do the Shelter-in-Place Rules Affect Custody Orders?
No. Social distancing and shelter-in-place rules don't have any direct affect on custody orders. You should follow your current custody schedule unless you and your ex agree to change the plan or a court modifies your custody order. But if you have a legitimate concern that following your custody order will create a risk to your child's health and safety, you may be able to seek help.
There may be a valid reason to adjust your custody plan, such as:
- your child is high-risk for COVID-19
- your ex has tested positive for COVID-19 or is exhibiting COVID-19 symptoms and is presumed positive, or
- your ex works in a high-risk job, such as an ER doctor, nurse, or other health-care provider, who is frequently exposed to COVID-19.
There are no universal rules for family law courts to follow across the country, which makes this uncharted territory for divorced or separated parents and family law attorneys.
Some family law courts have stated that disobeying orders or using the COVID-19 pandemic as an excuse to deny visitation will not be tolerated. Judges may punish offending parents by issuing fines or sanctions.
However, other courts have come out on 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 order is lifted.
If you're facing a custody dilemma due to COVID-19, you should try communicating with your child's other parent to see what you can both do to reduce the risks to your child.
Children Who Are High-Risk for COVID-19
COVID-19 is highly contagious and can cause fatal respiratory complications. According to medical experts, people with asthma are at a higher risk for getting very sick or developing respiratory complications related to COVID-19.
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.
Getting Legal Help During the COVID-19 Outbreak
But what happens if parents can’t agree? If you have a legitimate concern that sending your child to your ex's home could pose a risk to your child's health, you may want to ask your ex to agree to a temporary change to your custody schedule, and propose alternatives such as:
- temporarily postponing in-person visits for a period of time (depending on what your child’s doctor says) and scheduling make-up visits for a later date
- scheduling daily phone calls and/or “virtual visits” using FaceTime or Zoom
- keeping in touch by sending letters, cards, and text messages.
If you can't resolve these issues on our own, contact a local family law attorney or a mediator for advice—most family law attorneys and mediators are still working and available for consultations by phone or via virtual meeting services, like Zoom.
Your mediator or individual attorneys may be able to help you and your ex fashion a temporary agreement to postpone custody exchanges for a period of time.
If you and your ex can't agree, your attorney may be able to obtain an emergency temporary child custody order from your local family court. Most federal and state courthouses have temporarily closed for nonessential cases in order to slow the spread of COVID-19. Law360.com is keeping track of court closures with an interactive map that's updated regularly. However, many family law courtrooms remain open for emergency orders which are being held by phone.
For example, on March 24, San Francisco Superior Court Unified Family Court issued a Notice of Emergency Family Court Operations which details how it's handling emergency family law matters, including domestic violence restraining orders (DVROs) and ex parte custody requests. The court 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 be able to show a legitimate risk to your child.
Check with your attorney or local court website to see if your courthouse remains open for emergency family law requests and whether it has issued any helpful COVID-19 specific guidelines. As COVID-19 continues to spread and courts simultaneously try to serve the public, notices and policies will be revised frequently.
