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

We wrote this article for parents who are dealing with child custody and parenting time issues during the Coronavirus pandemic. As we become aware of additional topics related to child custody and the Coronavirus, we will update this article so please check back often.

This article is updated as of April 3, 2020.

Our family law firm remains fully operational during the Governor's "Stay at Home" order. Our attorneys and staff are working remotely. Our firm has consistently been at the cutting edge of technology. Therefore, we have been able to adjust and transition during these volatile times and our clients have been the beneficiary of our ability to keep the quality of our representation at the highest levels.

This article is not legal advice nor any other kind of advice. Please contact our California family law firm if you need legal help with your child custody or parenting time issues due to the Coronavirus.

Frequently Asked Child Custody Questions About the Coronavirus

The Coronavirus pandemic has a significant impact on parents with children. Since our initial publication of this article weeks ago, we updated the frequently asked questions. We initially wrote this article before there were school closures and well before the Governor's "Stay at Home" order. Much has changed since then. Here are the updated issues and questions with answers.

Click on the "Q" to skip ahead to each question and answer or scroll down to read all of them.

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)."

We are not aware at this time of what other Southern California courts are stating about this issue. However, Judge Hurwitz's guidance on this issue should be instructive to parents, family law lawyers and other courts.

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.

What if the other parent has professionally 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.

In Orange County, Judge Hurwitz suspended all professionally 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.

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.

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