How do COVID-19 shelter-in-place orders and social distancing guidelines affect custody and visitation orders?
Generally, parenting agreements and custody and visitation orders remain unchanged and must be followed. However, you and your ex may negotiate changes to your Parenting Plan or, if you both agree to the terms, ask the court to make changes to an existing custody or visitation order.
Even if you have legitimate concerns, you might be held in contempt of court if you fail to honor a visitation or shared physical custody agreement or order. If you believe your current agreement needs to be modified, be proactive.
What if my ex doesn't want to change our custody or visitation agreement?
Unfortunately, parents don't always agree on what is best for their children. You may be worried about your kids' safety when staying with your ex. Conversely, you may be concerned that your own home isn't safe enough for them, particularly if you have a high-risk occupation. One or both of you may want the other parent to shoulder more of the day-to-day child care responsibilities.
Valid concerns that could necessitate a temporary modification to your custody or visitation agreement include:
- You or your ex have been exposed to COVID-19 or show signs of illness.
- Your child has a compromised immune system or is at a high risk of developing serious complications from COVID-19.
- You or your ex work in an industry with a high exposure risk, such as health care, elder care, corrections, or meat processing.
If you have such concerns or you believe the other parent isn't complying with shelter-in-place orders or following reasonable social distancing guidelines, you should ask a lawyer about modifying the order. If your ex fails to comply with an existing visitation order, you may want to document it in a Child Visitation Letter before taking legal action.
What are my legal options if I'm concerned about the immediate health and safety of my children in light of our current parenting agreement?
Let's say your children tell you about a big party your ex had last weekend during a planned visit, in direct violation of current social distancing guidelines. Your ex admits to it but insists proper precautions were in place. Social media posts suggest otherwise.
You're concerned about your children being exposed to COVID-19 and don't want to send them back to the other parent's home, at least until the crisis has passed. But your ex refuses to change the terms of your parenting agreement. You don't want to wait for this to work itself out; you want to take action right away.
In a case like this, you may be able to get an emergency custody order from a judge. But remember, child custody and visitation laws and procedures vary by state. Some states have a very high bar for granting emergency orders, often requiring a factual showing of "imminent danger" or serious risk to the child.
If you believe you need an emergency order, contact your attorney first. Your lawyer may be able to persuade your ex to agree to a modification. If that doesn't work, your attorney might then pursue an emergency order, if appropriate.
What types of modifications are available?
Depending on your state's laws, any relevant stay-at-home orders, and the facts of your particular case, you may be able to obtain the following custody or visitation modifications:
- Temporary postponement of in-person visits.
- Temporary postponement of shared physical custody.
- Daily or periodic telephone calls or video meetings, also called virtual visitation.
- Supervised visitation.
How does virtual visitation work?
Virtual visitation is a lot like an online business meeting or a video chat with relatives, often conducted via Zoom or other videoconferencing platforms. It's been available in many states for some time, even prior to the COVID-19 pandemic. While not typically intended as an alternative to in-person visitation, courts may temporarily allow online visitation in place of in-person visitation in light of the current situation.
As with most family law matters, the availability and application of virtual visitation depends on the state where you live.
Have states issued guidance or temporary legal modifications for child custody and visitation as a result of the COVID-19 crisis?
Most states provide online advice and FAQs regarding the legal and practical disruptions in child custody and visitation due to the COVID-19 pandemic. They all stress the importance of not violating a parenting agreement or court order. Topics covered include:
- Switching from in-person to virtual visitation when it makes sense.
- Child custody and visitation exceptions to orders prohibiting nonessential travel.
- The importance of documenting temporary, mutually agreed-upon modifications.
- What happens if one parent is exposed to or diagnosed with COVID-19.
- How to document and make up any missed parenting time once things return to normal.
Some states are offering, and strongly encouraging, mediation services for parents who are having trouble agreeing on temporary modifications. Some courts are giving parties more time to file court documents or cancel court dates. Generally, though, family courts already have systems in place to account for temporary disruptions, disagreements among parents, and potential risks.
Here are links to a sampling of state-specific guidance for child custody and visitation in the context of COVID-19:
Protect your rights and your family during this difficult time
Navigating the legal system is challenging enough as it is. But when you're also dealing with a pandemic and concerned about your child's health, it can be even more difficult. Make sure you have the right legal guidance regarding divorce, child support, custody, and other matters before you make important decisions. Ask a lawyer if you need additional help.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.