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CHILD CUSTODY AND VISITATION ARRANGEMENTS DURING THE CORONAVIRUS PANDEMIC

In the best of times, maintaining a positive co-parenting relationship with your ex can be challenging. The coronavirus pandemic has added a level of complication to child custody and parenting plan arrangements.  Here, we discuss how coronavirus pandemic might complicate your child custody or visitation arrangement and offer some tools that you and your child’s other parent can use to make it work.
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The pandemic has disrupted many facets of life including child custody orders and parenting plans.  Many states and cities have shelter-in-place orders and parents may be concerned about leaving their homes to pick up or transport the child.  Some parents are unable to exercise their regular visitation or parenting time because they or someone in their household is ill with the virus or was exposed to the virus and has been ordered to self-quarantine.  It may not be safe to move a child who has the virus and potentially expose the other members of the household.  Because of the rampant and virulent nature of the virus, some parents are refusing visitation or not returning the child because they are concerned the child may contract the virus.  Parents are right to be scared. Scientists estimate that 1 out of 4 people who have the virus may be asymptomatic, so a child moving from one household to the next may contract the virus and infect the other household without showing symptoms.

If you refuse to allow the other parent visitation because mof the pandemic, you may be vulnerable to a contempt of court charge for willfully disobeying a court order.  It is important for you, as a parent, to understand your legal obligations. Unless your state courts have issued contrary instructions, you are still required to comply with the terms of your court-ordered parenting plan. As Texas courts have explained, parents must follow their court-approved visitation arrangement even during the pandemic. They must observe the schedule for the school year even if schools are physically closed and children are required to complete distance learning assignments.  If you refuse to allow the other parent visitation because of the pandemic, you may be vulnerable to a contempt of court charge for willfully disobeying a court order. Additionally, the other parent may use your refusal to follow the visitation schedule against you and seek a modification of the custody order.  Suppose your situation exposes your child or a vulnerable person in your household to a heightened risk of infection.  There is a difference between restricting visitation when you have a valid concern about the health and safety of a child or vulnerable person in your household versus a general fear based on the situation.  Here are some examples of a few situations that may warrant a temporary change in custody and visitation arrangements:  One parent or someone in his or her household works in an essential industry (e.g., health care, grocery store, mass transit, etc.) where he or she is at high risk of exposure.

• One parent is not practicing social distancing and is known to be visiting with friends and family.

• The child has asthma or another medical condition that puts him or her at high risk from COVID-19.

• Someone in one parent’s household is exhibiting symptoms consistent with COVID-19.

• Moving between households requires the use of public transportation.

And there may be others.

Remember that a custody order continues to apply until it is changed by the court. If you want to make a change to legal custody (ability to make decisions about the child), physical custody, or your visitation/time-sharing schedule, you will have to try to modify the order. The way you approach this depends on whether you and the other parent agree about the changes or not.

AGREED ORDERS
During this time of crisis, it is important that you speak to your child’s other parent about the situation and focus on what is best for your child. If the other parent is a healthcare worker or has been exposed to COVID-19, he or she may agree to temporarily give you custody or refrain from exercising visitation. In exchange, you can agree to give the parent make-up time later when it is safe to do so and to make the child available for frequent phone calls and video visits with apps like Skype, Facetime, and Zoom.  If you and the other parent believe that a different arrangement will better meet your child’s needs (e.g., you have a more flexible work schedule and can help with distance learning), you and the other parent can work out a new arrangement.  Put your agreement in writing and sign it. You may then be able to present the agreement to the court as a joint petition to modify the order.  If the family court with jurisdiction of your case is closed, you might have to wait for it to reopen to submit your agreement and have the court make the modification. However, If you and your child’s other parent agree, you could probably start with the new arrangement right away. Make sure to keep a copy of your signed written agreement to protect yourself from a claim by the other parent that he or she did not agree to the change.

CONTESTED CASES
If you and your child’s other parent do not agree about changing custody or visitation arrangements, you need to get the court to change the order. You cannot unilaterally make changes without court permission just because you want changes. Even if you are afraid for your child’s health and safety, you need a new court order before you can make these changes. If the situation is an emergency, you might need to seek an emergency hearing (see below).  If the situation is not an emergency, you will typically have to submit a petition requesting the changes you want in the custody order and the reason why you believe these changes are necessary. Depending on your state and how long it has been since your child custody or visitation order was put in place, you may have to show the following:

Put your agreement in writing and sign it. You may then be able to present the agreement to the court as a joint petition to modify the order.

CHILD CUSTODY AND VISITATION ARRANGEMENTS
• There has been a material change in circumstances—Something major must have happened since the last order was put in place.

• The change is in the child’s best interests—The court will review various factors related to the child, the parents, the current arrangement and the child’s environment to determine whether the requested change is in the child’s best interests.  Some states have a presumption that the current order is in the child’s best interest and will require you to overcome this presumption before the court will consider making changes to the order.  You must file the petition in the family court that has jurisdiction of your case and legally serve the other parent with the petition. Many courts across the country have closed due to the pandemic. You may have to wait for the court to open or see if your court offers video hearings. Contact the court clerk before making any new filings.

EMERGENCY HEARINGS
If your child’s health or safety is in imminent danger, you may be able to request an emergency order to protect your child. Typically, this request is completed ex parte, meaning that the other party is not present. You get a temporary order from the judge, give notice to the other parent, and then attend a hearing. These hearings usually have priority over regularly-scheduled hearings. Even if courts are generally closed, they may still be available to issue emergency orders and schedule emergency hearings in person or through video court hearings.

SOURCES OF INFORMATION TO CHECK
To be sure that you uphold your legal responsibilities during this time, it is important to carefully review the following:

YOUR PARENTING PLAN AND CHILD CUS TODY ORDER
Read over the child custody order, parenting plan, visitation agreement, or other court order that applies to your case. While the document is unlikely to contain language that specifically addresses a pandemic, it may contain other language that can provide guidance. For example, your order may state that both parents should work together to make important decisions regarding the child including decisions about the child’s health and education. However, it may give a tie-breaker vote to one parent if both cannot agree. This may be a useful clause in this situation if you and the other parent cannot agree about whether your child needs medical care and what type of medical care to seek.  Your custody order may require you to try mediation if you reach an impasse. You and your child’s other parent can try mediation even if your custody papers do not require it. Alternatively, there may be a third-party neutral organization that helps resolve parenting disputes in your jurisdiction. You can likely schedule a mediation session and participate virtually to try to resolve the disagreement amicably without involving the court.

SHELTER IN PLACE ORDERS
You should check your state or local shelter-in-place order or stay-at-home directive for guidance. The order may include information about “essential travel” and may indicate that you can continue to travel to comply with an existing court order and legal obligations. This is the case in Colorado and likely many other areas.

YOUR LOCAL COURTS AND LEGAL PROFESSIONALS
Also, check with your local court for additional guidance. Your local court may have posted guidelines on its website about how to handle co-parenting during the pandemic. Some legal organizations have provided help for parents. For example, a statewide family law panel in Oregon issued guidance to help parents. Your family law attorney should be able to direct you to additional resources and offer advice for your particular situation.

EFFECTIVE CO-PARENTING STRATEGIES TO USE DURING A PANDEMIC
Now, it is more important than ever to try to work together to provide a united front to your child. Children thrive on stability and routine, so it is important to try to provide consistent and predictable routines, especially when other things may seem out of control. Here are a few effective strategies to use during this time:

PUT YOUR CHILDREN’S INTERESTS FIRST
It is more important than ever to put your child’s interests first. Whatever plan you put in place should focus on what is best for him or her.

COMMUNICATE
Do not let your communication with your child’s other parent deteriorate during this pivotal time. Focus on the big picture and communicate honestly and respectfully with the other parent.  Discuss your general concerns, as well as specific ones. For example, does a grandparent or older relative live with your child in either home? Do you or the other parent work in a high-risk field? How will you manage distance learning?  Have there been changes in your situation that justify a modification in the parenting plan?  Talk about these concerns, changes, and possible adaptations that you can make during this time. Confront the challengeas a team.  You can use a variety of online tools to help you manage these changes, such as ourfamilywizard where you can keep all of your communication, Cozi where you can share a family calendar, and Facetime and Zoom to have virtual visitation when physical visitation is not possible or advisable.  Understand that the other parent is concerned about your child. He or she does not want to lose valuable parenting time. Follow the CDC’s recommendations to minimize potential exposure, including social distancing. By being understanding as well as vigilant about protecting your and your child’s health, you can adapt to the situation and give your child the stability he or she needs.

CREATE AN EMERGENCY PLAN
Work together now to develop an emergency plan just in case the situation changes. Discuss what to do if one of you becomes sick, your child is exposed, or if a shelter in place order comes into play. Having a plan in place can provide you with a sense of control and peace.

CONSIDER MEDIATION
If communication was already an issue before COVID-19, these underlying tensions may be magnified during times of crisis or stress. An intermediary can help you communicate effectively if you have a strained relationship with the other parent. Many mediators are currently offering video mediation as a way to resolve problems without worrying about exposure.

CONCLUSION
During this unprecedented time, it is important to protect the health and safety of your child. A family lawyer can discuss your options and help you resolve issues that arise through mediation, negotiation, or litigation. Even where stay-at-home orders are in place, most family law attorneys are available to clients through phone and video conferencing.

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