What is social distancing?
In early February 2020, the world learned of a COVID-19 outbreak, a coronavirus (SARS CoV-2) that causes severe fever, dry cough and attacks the host’s lungs and heart. These symptoms can be deadly to people with a compromised immune system and the elderly. The COVID-19 outbreak has since been classified as a pandemic. The Center for Disease Control has recommended social distancing to combat the spread of the virus. Social distancing is the practice of keeping a physical distance of at least six feet when out in public, not gathering in large groups, and avoiding crowded places whenever possible.
The CDC also recommended that each governor issue a stay-at-home or shelter-in-place order. This means that all nonessential business is to be conducted from home; if this is not possible, then a temporary shut down of nonessential businesses is to be in effect until the spread of the virus can be contained. A stay-at-home order requires all nonessential personnel to not leave home unless it is to get food and supplies, medications, or for emergencies. When it is necessary to venture out into the public, wear a mask or protective facial cover. COVID-19 is 10x deadlier than influenza. Social distancing and staying at home are critical steps to stop the spread of the COVID-19 virus.
The United States, along with the rest of the world, has taken aggressive measures to put social distancing rules in place. Two rules that have had a major impact on the daily routine of most Americans is the closing of schools and nonessential businesses. Many folks are now working from home while at the same time, homeschooling their children. For parents who do not live together, there is the added pressure of maintaining a visitation schedule with a noncustodial parent during this unprecedented time.
How has social distancing impacted child custody and visitation?
The pandemic has affected the jobs, income and work schedules of both custodial and noncustodial parents. Working from home has its perks but can also bring added job responsibilities making it hard to find time to home-school; family time is now school time. Essential workers, such as nurses, doctors and military personnel, are working overtime due to the increase in cases of people infected by the virus. Parents who are essential workers are more likely to catch the virus from repeated exposure, thus putting their families at risk. Additionally, thirty one million Americans are out of work or have lost their jobs due to the pandemic. Families are suffering from the biggest economic collapse since the Great Depression, making it difficult to pay rent and keep food on the table.
As a result of these changes, families are doing their best to obey court ordered visitation by adjusting visitation schedules. These adjustments are not official as the courts are closed, forcing parents to make temporary, verbal agreements. Unfortunately, without the courts involvement, many parents are finding this to be a challenge.
What are some of the factors facing custodial parents who must obey court visitation for a child with a noncustodial parent?
In times like this, it is tempting for one parent to want to take control and refuse visitation to the other parent. Perhaps it would be easier for the sake of time management and homeschooling. Or, perhaps there are other reasons, such as, the other parent may be an essential worker, or maybe not taking the threat of COVID-19 seriously, refusing to practice social distancing. These concerns can be compounded if the child or a family member already suffers from health related issues, even more so, if the child has special needs related to their mental health and educational development. Differences in how to care for the child can cause more than friction in what is already a stressful time.
What impact does the stay-at-home order have on visitation?
Each state’s governor has issued a stay-at-home or shelter-in-place order. Some states have implemented a severe approach to implementing the order while other states have treated the order as more of a suggestion. Complying with a court order can get tricky when the noncustodial parent lives in another state, requiring state lines to be crossed in order to abide by the visitation schedule. Nevertheless, a governor issued stay-at-home order does not supersede a court order. Again, parents may be tempted to use a stay-at-home order to take control of a visitation schedule, but this would violate a court order.
Can parents refuse visitation until the spread of COVID-19 is contained?
If one parent refuses to allow visitation, even if such refusal is based on the child’s needs, a noncustodial parent’s abuse and substance misuse, or concerns over exposure to the COVID-19 virus upon visits, such refusal is still in violation of a court order. Such justifications are likely to have existed prior to the pandemic outbreak. Parents would have needed to take their concerns before a court before the installation of any stay-at-home order. Refusal to allow visitation during a pandemic, while the courts are closed, leaving the noncustodial parent with no course of remedy can be seen as taking advantage of the current situation to deny a parent their rights to see their child.
Some advice for parents who find themselves grappling over whether or not to refuse visitation is, first and foremost, obey any court orders that are in place regarding parent time and visitation. Divorce alone can have serious, negative, long-term impacts on a child’s development. If two parents are at odds, this impact is only worse. Now more than ever, the current situation the country is in, calls for parents to be cordial, patient and understanding of each other for the sake of the child and the family as a whole.
The important thing to keep in mind is what’s best for the child, and more often than not, it is best for the child to see and have contact with both parents. In addition to making an honest effort to communicate, parents should try to be flexible with visitation, schedule extra phone time and even video conference calls, and plan to schedule make up time for any missed visits. Most importantly, if there is a concern about the child being exposed to COVID-19 while with the other parent, raise these concerns and be ready to listen while offering solutions that do not cut into parenting time. Remember, the country will get through this pandemic and when it’s over, courts will reopen.
State by State Covid-19 Updates
In general, courts across the states are closed, with the exception of emergency hearings. Some states are holding hearings in limited matters via conference calls, but each state is hearing such matter on a case-by-case basis
The family courts in California are only accepting 'ex parte' emergency petitions for child abuse, domestic violence and child abduction matters because the Covid-19 pandemic has left administrative support short staffed. Ex parte motions which are made at the request of one party are typically only temporary in nature. An emergency application is a request for a support order to be heard by the court in an expedited manner. Typically, an 'emergency' under the law is defined as an event or a combination of circumstances that calls for an immediate action or remedy from the Court. There usually is a call for a 'pressing necessity' or or an 'exigency' that requires immediate Court involvement. California has not yet been taking up any child custody issues as emergent so it is unlikely that the failure to comply with a previous order or seeking modification of an existing order would qualify to be heard before the court as of today May 18th, 2020. Video depositions rules for custody disputes are still expected to proceed. All these rules are changing daily as the Covid-19 situation develops and may differ slightly from county to county within the state.
Florida family courts are closed except for emergency petitions for domestic violence injunctions, kidnapping petitions when a parent flees the state with a child and other matters at the discretion of the Judge. No further updates have been announced.
On April 3, 2020 an Executive order was set forth that clarified that the April 2, 2020 ‘shelter in place’ order by the Governor did not supersede any prior custody arrangements and orders established by the court.
On March 18th, NJ courts ceased all in-person filings, submissions, and proceedings. All exigent matters will be handled via phone or video conference calls. No further updates have been announced.
Family Courts remain open but with limited staff. Only emergent filings are being accepted with all proceedings to be conducted via video conference calls.
Family court remains open only for exigent filings, including domestic violence and custody matters that risk injury to life and limb. All non-exigent matters will be on hold until April 17, 2020. Stay at home orders are in place by the Governor until April 30, 2020.
At this time, courts will remain closed through April. Family matters are being heard on a limited basis and parties are encouraged to conduct hearings via conference calling. An automatic order was issued that existing custody orders remain in full effect.
Family courts remain closed until May 1, 2020. Protocols have been put in place to allow Judges to hold limited hearings via Zoom conference. An automatic stay has been put in place mandating current custody orders stay in effect.