I first started writing articles about COVID-19 related concerns back in March of 2020, never expecting that an entire year later I’d still be dealing with concerns related to the ongoing pandemic. Custody and visitation issues are some of the biggest that we face in family law, especially when parents share children between two different homes with two completely different sets of values.
In many cases, one home has a family member who is elderly, immune compromised, or part of another high risk population for whom fears around the novel coronavirus are heightened.
I’m not here to pass judgment, or to discuss the merits and demerits of masking or social distancing or whatever anyone else wants to do in his or her free time.
I’m here to give you a (fairly) specific legal answer to a general question that has a specific application as it relates to visitation during the pandemic: Can I refuse to send my kids to visitation?
The short answer is: you need to do what your agreement or court order says.
You don’t get to impose rules now. You can’t tell him how he’ll spend his time, or dictate rules that he must follow in order to see the children.
In order to change your existing order or agreement, you’ll need to file a petition with the court or reach a new agreement.
To the extent that you have rules or conditions already implemented in your agreement or court order, you can enforce those – but you can’t make up new rules or conditions or standards that aren’t included or weren’t contemplated before. Anything that he was given – anything that you see spelled out in black and white in your written agreement or your court order – is his, and you take it away at your own peril.
If he doesn’t have parenting time specified or was specifically denied parenting time, you don’t have to allow it to occur in a manner that leaves you feeling uncomfortable.
What I describe here is really two different scenarios.
In the case that he doesn’t have defined parenting time, or where the agreement or order says that parenting time will happen “at such time as the parties may agree” or something like that, you’re kind of on a slippery slope. You aren’t violating any order by not agreeing to time he asks for. But you may be speeding up the process of negotiating or litigating custody again.
Keep in mind, too, that the court uses the best interests of the child factors, and that number 6 (the propensity of each parent to support the child’s relationship with the other parent) is important. If the court feels you’ve unreasonably denied visitation, it could be detrimental for your custody case. Will the court feel your concern over COVID-19 was justified? Well, it’s hard to know, now, what jurisprudence related to the pandemic will look like and, at this point, we just haven’t tried enough cases with these issues to speak confidently.
On the other hand, if he was denied visitation, or you have sole custody, you don’t have to give him anything. He can petition the court, too – because, no matter what happened before, custody, visitation, and child support are modifiable based on a material change – but I think it’s less likely to be detrimental to you.
Of course, all of this is really specific, based on the facts in each particular case, so there can be a lot of variability. If you have specific questions about your case, you should talk to someone before you make any rash decisions that might impact your custody case later.
What if I don’t have a current agreement or court order?
If you don’t already have an agreement or custody order, you don’t have to do anything in particular – but, of course, any action that your child’s father believes is unreasonable is likely to send him straight to court to file petitions to have custody and visitation determined.
To the extent that you can discuss and agree, in general I think that’s best. For one thing, you avoid going to court – and if there’s an absolute cesspool of germs, it’s the courthouse! For another, you can set yourself up for greater (and longer term) coparenting success, which will save time, money, and blood pressure points, not to mention be a better, healthier environment for raising your children.
You’re not completely autonomous when it comes to your children, and I know that’s a really tough pill to swallow. Your concerns are almost certainly legitimate; heck, 400,000+ people have died from the virus! It just doesn’t mean that you have a unilateral right to keep your children away from their other parent, unless you already have an order or agreement giving you that kind of power.
For more information, or to schedule an appointment, give our office a call at 757-425-5200.