Child Custody Questions and Answers Parents Face Due to the Coronavirus

Learn the challenges the Coronavirus is causing for separated or divorced parents with and without child custody orders

Child Custody Tips During Covid-19 (Updated in 2021)

Covid-19 rocked the family law world. Divorce, child custody disputes, domestic violence cases and more went on a tilt.

With 2021, release of the vaccines and the pandemic coming under control, the tensions subsided but there are still Covid-19 caused disputes between spouses and parents.

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We started this article spring of 2020 when Covid-19 started.

We wrote it for parents who were dealing with child custody and parenting time issues in California during the Covid-19 pandemic.

As we became aware of additional topics related to child custody and the Coronavirus, we updated this article and continue to do so.

These child custody tips are not legal advice and not intended to apply to your specific situation.

You should consult with an experienced family law attorney regarding your specific situation.

Our attorneys are licensed in California only.

Frequently Asked Child Custody Questions About the Coronavirus

The Coronavirus pandemic had and still has a significant impact on parents with children.

Since our initial publication of this article last year, we updated the frequently asked questions. We initially wrote this article before there were school closures and well before the California Governor's "Stay at Home" order. Much has changed since then.

We considered removing the questions asked early in the pandemic but realized that may not be best, because we do not know what is ahead.

With the Covid-19 virus variants and a future that is still uncertain (although looking better), questions parents asked last year may still be relevant this year if Covid-19 takes hold again on our daily lives or one of its many variants becomes so resistant to vaccines that the infection and death toll rises again.

For this reason, we kept the questions that arose in the year 2020, below. However, we added updated questions and answers for 2021.

The 2020 questions will give perspective on how far we have come.

As you read further down these frequently asked questions, you will see the 2021 questions asked and answered. These are still stressful and confusing times for parents.

In the first part about 2020 questions, click on the "Q" to skip ahead to each question and answer or scroll down to read all of them.

If you want to skip ahead to the 2021 questions, click on the image below.

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Click image to go to 2021 FAQ

Can a parent withhold a child due to the Coronavirus despite a court order?

This is the question most parents ask. One parent is using the Coronavirus and the Governor's Stay at Home Order to claim the other parent cannot exercise court ordered parent time. Is this a violation of the court's order or is the parent who denies the court ordered parenting time justified in doing so.

In Orange County, Presiding Family Law Judge, Lon Hurwitz, issued an administrative order on April 1, 2020. Here is what he wrote:

"COVID-19 is not a reason to deny parenting time. Unless otherwise ordered by the court, parents are considered fit to care for their children and make decisions regarding the day-to-day aspects of parenting while the children are in their care. This day-to-day care includes following all Health Authority and County Public Health directives regarding social distancing and sanitation-related measures (such as frequent handwashing)."

Judge Hurwitz also wrote:

Unless the parties are restrained from communicating, parents are encouraged to communicate about precautions they are taking to slow the spread of COVID-19. A parent is not permitted to deny parenting time based upon the other parent's unwillingness to discuss their precautionary measures taken, or belief that the other parent's precautions are insufficient.
San Diego's Supervising Family Law Judge, Margo Hoy, made similar statements to the San Diego Family Law Bar Association.

All child custody and visitation orders from the court remain in full force and effect until and unless modified by the court.

Parents are encouraged to work together collaboratively to insure that they are acting in the best interest of the minor children and sharing the rights and responsibilities of raising their children. The court may or could consider a parent's wrongful use of the COVID-19 Pandemic to violate court orders in any future matter before the court regarding child custody and visitation. Parents are encouraged to be flexible in identifying and determining alternate exchange locations for the exchange of children in accordance with the court order in the event there are closures due to COVID-19 and the CDC guidelines in place.

What if the other parent has supervised visitation? Should supervised visitation still continue despite the Coronavirus pandemic and Stay at Home Order?

This is a more complicated issue. Professionally supervised visitation is likely not practical, nor safe, during this time. There is also non-professional supervised visitation, which is equally not practical.

In Orange County, Judge Hurwitz suspended all supervised visitation. Here is what he wrote:

All supervised visitation is to be conducted virtually via videoconferencing or by telephone.

What other counties do remain to be seen, but, once again, what Orange County is doing does appear consistent with best practices.

What can I do if the other parent withholds the child from me due to the coronavirus?

Here is the scenario. One parent refuses to give the child to the other parent in violation of a court order. What can the other parent do?

If there is a clear court order, the parent has several options available. It starts with dialogue. Instead of assuming the worst intent, why is the parent withholding the child? Is the child exposed to the coronavirus? Is there a local health order that requires a quarantine of individuals? Is there a medical doctor's recommendation to withhold the child?

Parents should talk. Emotions will run high. Maybe the parent withholding the child is using the coronavirus as a nefarious attempt to withhold custody. That is possible.

  1. First, the parent from whom the child is withheld can call the police. This should happen after a reasonable attempt at dialogue. However, do not be surprised if the police do not compel compliance.
  2. Second, if that parent has a lawyer, his or her lawyer can contact the other parent (or the other parent's lawyer if the other parent has representation) and request an explanation and/or demand return of the child depending on the circumstance.
  3. Third, the parent can seek court intervention although in Southern California, that is currently a challenge because many courts are closed. That does not prevent the parent from seeking court intervention after the courts re-open but be prepared to explain why the other parent's conduct was unreasonable and a violation of the court order. That is why it is important to document the dialogue with the other parent.

How should parents treat Spring Break, holidays, vacations and summer breaks now that there is no school?

This question comes up because California schools are closed. A court order may state a parent has a particular holiday until the child or children return to school. How do parents treat such holidays when an order states one parent has the child until the child returns to school?

We believe it would be in bad faith for a parent to withhold a child and attempt to argue that since there is no school, one parent can withhold the child until school resumes. This hyper-technical reading of an order may expose the parent withholding the child to repercussions including potential monetary sanctions or even a loss of parenting time if the Court is asked to address the issue at a later date.

In Orange County, Judge Hurwitz wrote the following:

While the schools are closed, parenting time shall continue as if the children are still attending school in accordance with the school calendar of the relevant district. "Spring Break", "Summer Break/Vacation" or other designated holidays, means the regularly calendared breaks/vacations or holidays in the school district where the children are attending school. The closure of the school for public health purposes will not be considered an extension of any break/vacation/holiday period or weekend.
San Diego's Judge Hoy stated:

Due to the COVID-19 Pandemic, all schools in San Diego County and throughout the State of California are closed for an extended period of time to reduce the spread of the virus. While the schools are physically closed to students, they are still enrolled full time and participating in "distance learning" to varying degrees. Parenting time and schedules shall continue as if the children were still physically attending school with same start and end times. School calendar for each district and/or school shall be referenced for the specific holidays or vacation schedule (spring break, summer vacation etc.)
Parenting schedules should continue in accordance with the school calendar, which shall be referenced for any specific holiday or extended weekend time granted in the court order.

What if a parent is diagnosed with the Coronavirus, but still insists on exercising his or her parenting time?

We believe this should qualify for an emergency court order. Although there is some medical information that states children are not at high risk to get the Coronavirus, knowingly exposing a child to a person who has the Coronavirus seems contrary to the child's best interest and an issue on which the court should immediately act.

The parent without the Coronavirus who wants to avoid the child exposed to it should seek an emergency child custody order that suspends parenting time. That parent should be prepared to submit evidence in support of his or her claim the other parent is diagnosed with the Coronavirus. This may be as simple as the other parent's admission of this fact, although if the admission is not in writing, it is not uncommon for a parent to later deny the admission.

What we wrote above equally applies to a situation where a member of a parent's household, but not the parent himself or herself, was diagnosed with the Coronavirus. The key issue is not exposing the child to someone who has the virus. It does not have to be the other parent if this other person resides with the other parent.

Getting a court order to suspend parenting time does not mean the parent (or the person in the parent's household) diagnosed with the Coronavirus cannot have any contact with the child or children. There are various alternatives including telephone and electronic communication. Visual contact is available through various digital applications.

Can I seek emergency child custody orders while the courts are closed?

Orange County, Los Angeles and San Diego are the three courts we practice in the most.

Each of these courts are accepting emergency child custody applications. However, it must be a true emergency. There must be a threat of imminent harm to the child or children.

2021 child custody questions due to the Covid-19 pandemic

Here is an updated 2021 FAQ about Covid and child custody.

These questions and answers will be helpful for fathers and mothers with California child custody cases, as they continue to navigate Covid-19 and its effect on child custody and parenting time issues.

What if the parents do not agree on returning the child to in-person school sessions?

The answer to this question depends on whether the parents already have court orders for joint legal custody.

Joint legal custody orders are not all the same. Some legal custody orders are detailed and state what child-related decisions require consent versus only a consultation.

Some joint legal custody orders are silent or ambiguous. However, if parents have joint legal custody, chances are good they need to agree on changes to a child's education-related activities.

If the child was in a traditional school that had in-person sessions, the school transitioned to virtual learning, and now the school is transitioning back to in-person sessions, the family law judge may the child to return to in-person sessions. If the parents cannot agree on this topic, either of them can seek court intervention.

If a parent withholds the child from in-person sessions and therefore causes the child to miss school, it is possible the other parent will take a position that withholding parent violated the court's orders for joint legal custody. The argument may go something like this:

"Our child must continue to attend school until or unless we agree to the contrary and if a school transitions back to in-person learning, you are not permitted to cut off our child's education at that school without my consent or a court order."
What if the situation is the same hypothetical as above but one parent has sole legal custody?

If one parent has sole legal custody and that parent does not want the child to return to in-person school sessions, the situation becomes simpler from a family law perspective.

Sole legal custody means the parent with sole legal custody does not need the other parent's consent.

However, be careful here because some court orders are a combination of joint and sole legal custody.

The language of the court order matters.

In addition, that parent with sole legal custody should be cautious because withholding a child from school can have serious consequences for that parent separate from any family law case.

What if the situation is the same hypothetical as above with joint legal custody but the parent who wants to withhold the child from in-person education has a good reason?

That depends on the definition of, "good."

For example, if the child is immune-compromised and returning to in-person sessions has a greater risk for that child, the parent who wants to avoid in-person education and remain in a virtual education setting (assuming it is at a different school), should immediately seek court orders to allow the child to attend the virtual school.

Family law judges sometimes say they do not pick one school over another but instead designate a parent to pick a school if the parents cannot agree. That may happen in the above situation.

What if the school offers virtual and in-person school sessions and the parents do not agree as to which one the child should attend?

Let us again assume the parents have joint legal custody.

This issue is different because it is not about the child missing school, nor is it about whether the child will attend a different school.

It is about how the child will attend the same school the child has been attending.

This one is not as clear.

The parent who wants in-person education will argue in-person education is a return to the status quo that existed before the pandemic so that is what should happen.

The parent who wants virtual education may argue virtual education is the new status quo and there is no reason to return to in-person education because the child is doing fine with virtual education.

Although this issue is not clear, one important point may be why the parent who wants continued virtual education believes that is in the child's best interest. If it is a child-focused reason (an immune-compromised child is one example) that argument has a greater chance of succeeding in Family Court if that parent seeks a court order.

If, however it has nothing to do with the child but the convenience of the parent, the argument is weak.

What if the parents cannot agree on resuming extracurricular activities because of ongoing concerns about Covid-19?

This is like the school issues except is not mandatory education.

Once again, we ask whether the parents have joint legal custody.

If they have joint legal custody they should talk and agree on whether the child should resume activities or one parent should seek a court order regarding what he or she wants.

The parent who wants to resume the extracurricular activity may argue the resumption is not a change but a return to the status quo that existed before the pandemic.

That is a good argument but there is no certainty the argument will prevail in court.

We like to be solution-focused and not problem-focused in such situations.

The parents should first determine why they disagree.

Once again, if there is a child centered reason to avoid returning to extracurricular activities and not just a parent's preference or unsubstantiated concerns, the child's best interest should control, and courts are protective of children's health, safety, education and general welfare because the California Family Code requires judges to be.

What if the parents cannot agree on who should be around the children during the other parent’s parenting time?

This one is usually not joint legal custody related. This is not about decision-making about a child's education, health or general welfare but more about whether a child or children should be exposed to other people while we are still dealing with the Covid-19 pandemic?

A parent with parenting time can usually do what he or she wants with the child on his or her parenting time.

For example, if a parent wants to take a child to a play-date during his or her parenting time, the other parent rarely has a voice in that, unless the court order is specific on such issues.

Therefore, whether a child or children should be around other children or adults is up to the parent with physical custody of the child at that time.

That is not to say the other parent has no options.

For example, if a child is immune-compromised and the other parent is placing the child in a dangerous situation by having the child around a group of people, the concerned parent can seek a court order disallowing such behavior.

Courts do not foreclose parents from seeking court intervention and proposed limitations on the other parent's parenting time if it follows the child's best interests.

What if a parent refuses to get the Covid-19 vaccine? Can the other parent seek sole custody until the refusing parent does so?

This is the big question we are waiting to hit the family courts.

Our California family law firm has not dealt with this issue yet and I would be surprised if many family law attorneys have dealt with it.

The vaccine is still rolling out and it is not available to everybody as of March 2021 when we updated this article.

Vaccine disputes are no strangers to family law cases.

The anti-vaccination community feels strongly about their position and we have handled cases and seen cases where parents get in significant litigation over vaccination of the child.

But vaccination of a child differs from vaccination of the parent. Can a court take custody away from a parent who refuses to be vaccinated? The short answer is we do not know but here is what we suspect will happen.

Our family law firm has offices in Los Angeles, Orange County and San Diego

We are available for an affordable strategy session. If you are facing a child custody situation of any kind, and your matter is or will be in any of the Southern California Courts, please contact us. We are ready to help.

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