Child Custody Questions and Answers Parents Face Due to the Coronavirus

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.

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.

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.

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.

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.

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.