The COVID-19 pandemic has affected millions of people worldwide and has caused us to fundamentally change the way we conduct our everyday lives. Efforts to protect against contracting the virus and to curtail the spread of the pandemic has resulted in the implementation of various public health care measures that have redefined and restructured our social relationships and interactions with other people – perhaps permanently. “Social distancing,” “shelter in place” or “stay at home” orders are some of those measures and have become the “new normal.”

Custody orders and parenting agreements govern the relationships and interactions between separated and divorced parents and their children. A parent’s right to physical custody or visitation is defined by those orders and agreements. Questions have arisen as to what effect, if any, does the COVID-19 pandemic have on a parent’s rights and obligations under such orders and agreements. Can one parent refuse to send the children to the other parent’s home because of fear of contracting the virus?  Is a parent’s right to visit with the children automatically suspended or restricted?

First and foremost, you should always consult with your attorney regarding your rights and obligations under a custody order or parenting agreement, particularly before taking any steps or making any decisions that may run contrary to your custody order or parenting agreement.

Your custody order or parenting agreement is a legally enforceable document. By law, you are obligated to comply with the court’s order for custody and visitation.  The presence of COVID-19 and the curtailment of social interactions as preventive measures do not, in and of itself, relieve a parent from the obligation to comply with the order or agreement. Failure to comply with the order could mean that you could be held in contempt of court and be sanctioned by the judge.  Violating the terms of a private custody agreement will expose you to the possibility of being sued for breach of the agreement and ordered to specifically perform the agreement under pain of contempt.

What if one parent believes the other parent is too relaxed in enforcing recommended COVID-19 health care measures with the children?  Is this a basis for denying or restricting visitation?

Visitation cannot be restricted or denied simply because there is a difference in opinion between the parents as to the degree in which public health safety measures are to be practiced. Differences between parents as to how to care for and supervise the children in their respective homes frequently occur in custody cases. The law presumes that a parent will act in the best interests of his or her children, and therefore, will follow safe health practices when they are with that parent. Differences between the parents as to how stringently the health care practices should be followed by the children does not, in and of itself, justify disregarding the court order or parenting agreement.

What if the noncustodial parent, or his or her spouse or significant other, or anybody else in the noncustodial parent’s home run a greater risk of contracting the virus due to that person’s profession or personal habits? 

Again, parents are presumed to be motivated to make decisions that promote the best interests of the children. The fact that there may be a statistically higher risk of contracting the coronavirus because the parent is a medical professional in a hospital or a first responder doesn’t mean that the children will, in fact, become infected or that proper safeguards against infection are not being practiced by the noncustodial parent. And absent a court order, it does not alone permit a parent to disregard the other parent’s rights to visitation.  There are varying degrees of risk that can be taken by a parent, and if the risk is serious enough so that a parent genuinely believes the likelihood of the children contracting the virus is great if visitation takes place, then it is recommended that the parent seek a court order modifying the visitation accordingly.

What if the other parent, or someone in his or her household, has contracted COVID-19 or has been quarantined?

Consultation with your attorney is strongly recommended before any decision is made as to whether visitation should take place under these circumstances.  Consultation with an appropriate health care provider is recommended, as well. The parents ideally should work together to protect the health of the children and, therefore, make appropriate arrangements in lieu of in-person visitation. Virtual visitation alternatives can be adopted to allow some form of contact between the children and the affected parent, such as through Zoom or Facetime. Acting in the best interests of the children is the goal in custody cases, and so if the parents cannot agree on alternatives, you may need to bring the dispute before the court.

The attorneys at Offit Kurman have many years of experience handling child custody cases, as well as other family law matters, in Charlotte as well as the surrounding counties. Additionally, given the nature of the current pandemic, we have the capability to speak with clients over the phone as well as via video conferencing.