How Courts Are Dealing With Child Custody During Coronavirus

We are lawyers, not doctors so we will not speak directly toward signs, symptoms, spread or treatment of the COVID-19 Coronavirus. Divorced adults who co-parent are facing a challenging environment in terms of their custody and parenting time arrangements. This article explores your options when faced with these challenges, and how the court is viewing and resolving custody issues in the current environment.

Withholding Child Custody & Parenting Time Based on Coronavirus Concerns

Unfortunately, we have already experienced a large increase in the number of people calling our offices because their ex is not following the custody and visitation plan that is currently in place. While there are certainly some instances for which this might be appropriate, in many of these cases, the parent who is withholding visitation is using the virus as an excuse for modifying a custody order without going to court. Courts are beginning to make clear that they are not going to tolerate vague references to the virus as an excuse for not complying with previous court orders and agreements, which may have dire consequences for the parent who is withholding the child.

How the Courts Are Viewing Parents Who Withhold Parenting Time

While all courts are not treating this issue exactly the same, it seems clear that the courts are beginning to coalesce around a few basic ideas that we believe parents should attempt to follow while this crisis is pending:

1. Regular Parenting Time: As a general rule, there should no deviation from the normal parenting time schedule unless the child or someone in the home tests positive for COVID-19. If that does happen, parents should remember that is important for children, who are bonded with both parents, to continue to have some contact with the parent who will not be seeing the child in person. Phone calls and video calls are the most obvious ways to do this. The missed time can be made up when the short term challenge is resolved, and can be done ideally through agreement by the parties, but can be done so by court order if needed.
2. Spring Break: The parties should not deviate from the Spring Break schedule that is currently in effect unless there is a travel restriction preventing it, or again, if the child or someone in the home has tested positive. You should remember that the parties can always reach their own agreement if there is a solution that is better than what is called for in the parenting plan, but otherwise, visits should remain the same. Missed time will likely be ordered by the court to be made up unless the parties reach a different agreement.
3. School Closures: Ideally the parties will cooperate and coordinate their schedules to provide their children with a workable framework for staying home from school. It is likely that schools will be closed for the rest of the school year, so this is a particularly challenging issue. But, absent a new agreement, the parties should leave the periods of parenting time as they are in their current agreement. However, the parents’ schedules may be changed so drastically by outside events, that if they cannot agree on a new, temporary parenting plan, they may have to seek the court’s intervention.

What You Can Do If Your Parenting Time is Being Withheld

Many courts are currently operating with a limited schedule of telephonic court hearings, most of which are reserved for emergency situations. If your case involves issues of domestic violence, child abuse or neglect, or issues related to a positive test for the virus, it is likely you will be scheduled for an emergency hearing. It is unclear at this time what other custody cases will qualify for a hearing. The courts have made it clear, however, that a vague reference to concerns over the virus will NOT be enough for parties to restrict visitation with the other parent.

There are also a few other options that this health crisis has created:

1. Attorneys have more leverage to negotiate and resolve parenting time issues. In the past, when a parent has wrongly restricted visitation, an attorney would simply file a motion to enforce the schedule or a motion to hold the other parent in contempt of court. While those same remedies are still available (and will likely be followed by most attorneys), the teeth in those motions have now gotten a lot bigger. The courts are beginning to make clear that they are going to look VERY unfavorably on parents who are wrongly withholding parenting time during this crisis, and these parents may be facing serious consequences should there be a hearing, including sanctions, costs and attorney’s fees, and a possible loss of custody and/or visitation time. This makes it much easier than in the past for attorneys to reach resolutions outside of court.
2. Attorneys have other tools to resolve these issues outside of court. If you are intending to seek an attorney’s help in this situation, you should look for someone who is creative and who has experience using alternative dispute resolution methods. Rather than waiting to go to court, attorneys can use tools like mediation and limited arbitration to resolve these issues. Arbitration, especially, if used correctly, could get the parties a legal ruling on their custody issues very quickly outside of the court system. Retired judges are an excellent source to tap as arbitrators for a speedy resolution to your custody issues.

Ok, that’s it for now. Please remember that the best interests of the child is always both the legal and common sense standard that should apply in these situations. If you’re in need of a divorce or family attorney, New Mexico Legal Group can handle your entire case remotely. Call us to learn how.