Child Custody And The Coronavirus

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Last week when I began to consider  the impact the coronavirus would have on custody schedules, I was focused on people having different perspectives of how to address the outbreak relative to their children’s day-to-day lives. I imagined there would be some people who wanted to be conservative and hold the children out of school, limit their participation in extracurricular activities, and generally start the “social distancing” while other parents would feel that the preparations were an overreaction and to carry on as usual.

In that relatively short period of time, the coronavirus has created a national health crisis acknowledged by most people and certainly by our federal and state governments. This is not the classic Philadelphia reaction to a snow storm where grocery stores are picked clean before the snow – if it arrives – melts in two days.  We are in new territory where state and federal authorities are closing (by recommendation or order) schools, public places, restaurants, and other non-essential places.  Parents subject to custody orders will inevitably be challenged about how they can fulfill the terms of their orders.

From a threshold perspective, no one should willfully violate a court order. “Willful disobedience” can expose a party to contempt and sanctions. Questions will arise, however, as to whether risking contempt is preferable to exposing the parties and/or their children to the coronavirus.

Legal custody issues will undoubtedly arise as parents debate how to manage the child’s care; while an ill child also creates a physical custody problem by potentially exposing the child to more people. Though children seem to be affected the least by the virus, they may also be a conduit to spreading the virus due to the mild presentation or parents confusing it with the flu or a cold.

Other legal custody issues dealing with education may arise as schools shift to online teaching (if they are able to do so) and parents look for alternatives to educate their children while they are out of school or while the parent(s) continue to work.

No custody case is the same and there are some situations that can and should operate normally because risks of exposure to the virus remain low for that family. These situations would be where the parties are both exercising all of the recommended precautions during their non-custodial time: when they do not have the kids they are practicing social distancing, limiting their exposure to groups of people, and practicing good hygiene. In other words, practicing the same precautions they would apply when their children are in their care.

More complicated are cases involving significant travel, exposure to third party caregivers, interaction with older family members or friends, employment that raises the risk of exposure, or mixed families where, for example, step-children are passing between households. Ideally, parents would agree upon an appropriate alternative to their normal, custody schedule until the virus subsides sufficiently to allow for more routine activity.  While the routines as we knew them may not return for some time, hopefully restrictions and concerns will ease once this acute, infectious phase decreases and the measures currently implemented sufficiently “flatten the curve” of the outbreak to ensure our medical systems are not overwhelmed.

In the interim, parties need to do the best they can to communicate so that neither side is unclear as to what their concerns or expectations are during this time. If a parent cannot (or will not) exercise their custodial time, then collaboration for additional FaceTime/Skype calls, online games, or other methods for maintaining their connection to their children should be explored and considered. Both parties should exercise common sense and be reasonable in their demands on each other and the children.

Where legitimate disputes and violations of the custody order arise, it will be difficult at best to address those issues in court on an expedited basis. Those with parent coordinators may have an advantage of having these issues addressed remotely, but for most cases, breaches of the custody order will be addressed in conformity with the current procedure for that county. Though the courts may be limited at the moment, it does not mean that parties will not be held accountable for their actions and decisions pertaining to custody in the near future.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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