I usually try to be prepared for everything, especially when it comes to my work. But, something this week caught me off guard. In the last week. I’ve seen a huge spike in clients asking about whether they must follow their custody order during COVID-19. Why was this so surprising?
I thought I would get a lot of questions in the beginning of social distancing about the stay at home orders. I even wrote a preliminary article about how to deal with custody issues during the Coronavirus, in hopes it would provide you with some guidelines as people started staying at home. Did you have a lot of questions about what to do with your kids when things started to be shut down?
But, in fact, issues regarding social distancing and following your custody order during COVID-19 have been more of a slow burn. Why? Maybe it’s because people are getting stir crazy and are starting to violate social distancing guidelines. Maybe people were in shock at first and now are settling in to the “new normal” and are now ready and willing to fight over these issues. Maybe a mixture of both.
Whatever the reasons, you have questions about following your child custody order during COVID-19. And you aren’t the only one. Even celebrities are struggling with this. But, don’t worry, I got you! Below are my tips and tricks for how to follow your child custody order during COVID-19. In this article, I’ll talk about:
- Stay at home instructions and following your custody order during COVID-19;
- What are the best practices for communicating with your co-parent about following your custody order during COVID-19?
- How to deal with violations of child custody orders while the courts are closed;
- Whether you must follow your custody order during COVID-19 if your co-parent works in a hospital or other essential business?; and
- If you must still follow your custody order during COVID-19 if your co-parent lives in a different state or far away?
Stay at home instructions and following your custody order during COVID-19.
By now, most states and cities have issued stay at home instructions for their citizens. But what should you do if you think that your co-parent isn’t following the social distancing guidelines? And what should you do if you think that their failure to do so is putting your children at risk?
This question, has been, without a doubt, the most common question that I have gotten about following your child custody order during COVID-19. Although it is the most common, it is the hardest to answer. Why?
Social distancing guidelines are not part of your custody order. Therefore, if you coparent is violating them (or you think that they are), it is not technically a violation of your custody order. Also, in general, the courts do not want to act as the social distancing police. What may be considered a violation to you may not be as concerning to a judge. So, while you may want to look to the courts to provide guidance and tell your co-parent to start wearing a mask when they go outside, it is unlikely that the judge will want to take on that roll unless the violation is severe.
So, what do you do if you don’t think your co-parent is endangering your children during the Coronavirus? Do you still have to follow your custody order during COVID-19?
In general, the answer is going to be yes. In fact, almost all states have made specific declarations emphasizing this recommendation. Also, most stay at home orders have categorized travel for custody exchanges as essential. So, unless it is an extreme situation, you are going to need to follow your custody order during COVID-19.
If you aren’t sure if your situation qualifies as an exception, don’t engage in self-help! I suggest that you contact an attorney and discuss your situation with them before withholding your child from the other parent. The last thing you want to do is have the courts find that you are the one violating your custody order and seek recourse against you.
What are the best practices for communicating with your co-parent about following your custody order during COVID-19?
I know that telling you to follow your custody order during COVID-19 may not be what you wanted to hear. However, this doesn’t mean that there is nothing that you can do about you co-parent’s violations. In fact there are a few things that you can do.
First, make sure that you bring up your concerns with your co-parent. Why? The first thing any attorney or judge is going to say is, did you tell him or her that you objected to ________? You want to be able to show that you attempted to address the issue with your co-parent directly. Why is this so important?
You and you co-parent are the parents of the kids. Not me, not the other lawyer and not the judge. You two. So you and that person need to deal with each other directly when it comes to issues with your kids. And, when it comes to either violations of your custody or issues following your custody order through COVID-19, the best way to do this is via written communications with your co-parent.
Do use a co-parenting app like the Talking Parents App or Our Family Wizard? If so, register your concern with him or her through that. Give them a chance to respond and correct. Or, email and text always works too. Again, give them a chance to respond and correct their behavior. Keeping an open line of communication between the two of you during this time is important. The more you accuse and judge, the less likely your co-parent will want to work with you during this time, or really, anytime.
But Liz, what if they don’t respond? Or worse, what if they don’t change their behavior? Then you may need to bring in the big guns to get them to following the custody order during COVID-19. I.e. Moi.
I recently had to help a client in such a situation. She had first tried to address a few social distancing issues with her co-parent. He disagreed with her opinion and kept up his behavior. So, I wrote him a letter advising him of her objections.
Sometimes a letter on legal letterhead will do the trick, particularly if they have a lawyer as well who they have to pay to read such a letter. And, even if the letter doesn’t cause him or her to see the light, official documentation of the violation could be helpful in a future custody hearing.
How to deal with violations of child custody orders while the courts are closed.
Okay so you’ve followed the custody order, told your co-parent about your concerns with social distancing guidelines, and he or she is still violating them or your custody order. Or, what if you are being accused of not following the stay at home orders and now your co-parent is withholding your children from you? Is there anything you can do?
Under normal circumstances if the other parent was not following a custody order, you would file something with the court about that violation and have a hearing about it. However, it isn’t as easy to deal with COVID-19 related custody violations. Why is that?
While you may think that the courts would be essential services, most courthouses are closed to avoid large gatherings of people. As such, judges are only having hearings for very limited purposes, like abuse cases or certain criminal matters. Is your ex not following your custody order during COVID-19 going to get you a hearing? Some places yes, but most no.
For example, where I practice, some judges are doing telephone conferences on these types of issues if the parties have lawyers. However, those are only phone conferences and the judges aren’t issuing orders because they aren’t allowed to do so under the law without having a hearing.
So, what does this mean for you? Let me be harsh here. It means that you shouldn’t first look to the court to solve your problem. Even then, they may not be able to be much help. However, I do have an exception to this.
What if you have an emergency custody issue during COVID-19?
If your co-parent is withholding your child from you or threatening to travel out of state with your kids, then I think that you should file something with the court even if they don’t do anything about it. Why? Because it is really your only recourse.
If this is your situation, I strongly suggest you contact an attorney to assist you. In many cases, the judges will more likely deal with this emergency issue if the parents have lawyers. Why?
Judges generally feel more comfortable talking to lawyers on the phone without a formal hearing than speaking to people that don’t have attorneys off the record. And right now, this is pretty much all judges can do. While I know that paying a lawyer may be the last expense that you need right now (especially if you have experienced Coronavirus job loss) this is a time where I am going to have to tell you to spend the money.
Do you have to follow your custody order during COVID-19 if your co-parent works in a hospital or other essential business?
The short answer is yes. There is no question that first responders, grocery store workers, and government personnel have greater exposure to COVID-19 than the public. However, the judge is going to generally assume that this parent likewise has access to equipment to minimize their risk while they are at work. The court is also going to assume that this person may be more knowledgeable about the risk than most and, as such, is going to be extra careful when it comes to exposing their kids to the Coronavirus.
However, there are situations where some essential workers have chosen to give up their custodial time while they are working to fight COVID-19. Is this your situation? If so, then I would hope that your co-parent (or you) would recognize this sacrifice and provide him or her with some make-up custodial time when the pandemic is over.
Should you still follow your custody order during COVID-19 if your co-parent lives in a different state or far away?
This answer is a lot trickier. While most stay at home orders consider custody transfers essential, what if that transfer requires a plane ride?
I have not had to deal with this issue in any of my private cases. However, I can see this being an issue right now, particularly because Spring Break is a common time where child will travel to see their out of state parent. Is this your situation?
Again, there are no hard and fast rules to custody in the age of the Coronavirus. However, if your custody exchange requires a trip to the airport, I would assume that a court would not require this exchange to occur. However, I would also think that a judge would give make-up time to the parent who is missing out on their custodial time because of the pandemic.
As with all custody issues, you need to communicate your co-parent. The more that you can discuss and accommodate your co-parent during COVID-19, the more likely that you will be able to resolve this issue without a trip to family court.
Is your child unable to see their co-parent because of a ban on travel? Make sure that you encourage them to speak to the parent via Facetime or Zoom on a regular basis. Remember, your children are just as stressed as you are. The more that you can give them normalcy and access to the other parent, the better they will do during this time.
What are the major takeaways for following your custody order during COVID-19?
Everywhere you look there are recommendations for what to do to prevent and/or treat the Coronavirus. There are also a lot of recommendations for how to follow your custody order during COVID-19 (or not). Here are the major takeaways about following your custody order during COVID-19:
- Following your custody order as much as possible;
- If you feel that your co-parent is not following social distancing guidelines, make sure that you tell them first and allow them to correct it before filing something with the court;
- If your co-parent is withholding your child from you, contact an attorney to discuss your situation before filing something with the court;
- If your co-parent is a first responder or essential worker, you are still expected to follow your custody order during COVID-19 unless you can show they are not following protocol regarding exposure to the Coronavirus;
- If you or your coparent can’t have custody of your children during this pandemic, work together to arrange make-up time after social distancing guidelines are relaxed;
- Set up Zoom or Facetime calls so that your children can maintain contact if they can’t see the other parent; and
- Be patient and flexible with your co-parent so as to reduce the stress on your children during this scary time.
I want to continue to wish you all my love and care during this time. We will get through it. Stay safe and most importantly, wash your hands!!!
What’s next on the Divorce Lawyer Life?
Were you in the middle of a divorce during this pandemic? Or, did you want a divorce before we were ordered to stay at home and you don’t know what you should do now?
Later this week, I’ll be posting about what you should do if you wanted a divorce before the pandemic. Are lawyers still seeing new clients? Are you considered separated if you and your spouse are quarantined together? Can you still file a divorce complaint? I’ll give you the answers to all of these and more next week.
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