Essential Workers: Custody and Visitation Concerns

Posted on Apr 27, 2020 by Katie Carter

An ER doctor in Florida recently lost custody of her 4 year old daughter on a temporary basis as fears of the coronavirus pandemic escalate around the country.

We keep reading about the stories of heroes who keep working despite the dangers of COVID-19, and we’ve realized recently how dependent we are on some of them: grocery workers, delivery drivers, transportation sector workers, doctors, nurses, hospital aides, nurse practitioners, on and on and on.

There’s been ton of coverage, and even proposed legislation to give these people increased pay to recognize the perils associated with just continuing to work. As more and more of us transition to working from home (including yours truly!), the people who have to go out just in order to keep the world running. I’ve been ordering groceries and takeout and just living in my house, but not everyone has that kind of flexibility. There are just certain people that need to work in order to keep us functioning at even a minimal level.

But – what makes sense? What’s in the child’s best interests? Should an essential worker – in this case, an ER doctor – lose custody because of the work they’re doing? Does it make sense to risk the health of the child’s other parent (and, potentially, the family attached to that other parent) – and anyone else they may come in contact with?

There’s no question its brutal. And unprecedented. And that the child involved needs her mom. But what’s right here?

If you’re wondering whether to continue sending your child to visitation with the child’s other parent, there are a lot of factors to consider. You may also be wondering about stepchildren or others that your child or your child’s other parent might come in contact with. There can be several degrees of separation involved, but if your ex husband’s new wife’s ex husband (that is convoluted, isn’t it?) is a doctor and they exchange kids back and forth in your ex husband’s household, there is some risk. If your stepchild’s mom is a nurse, do you have to bring that child in? What about if there are teenagers who are just flouting the rules about social distancing? At what point do you bar the doors? If someone is immune compromised, it makes the situation more complicated?

And what if you’re on the receiving end? What if you’re the nurse or doctor or other essential worker? There aren’t a lot of good answers, but there are a lot of good questions. Unfortunately, since we’re so early in the pandemic (though it may not feel that way after 5+ weeks at home!), there aren’t any hard and fast rules. Right now, we’re looking at things on a case by case basis, and, even then, it’s hard to get resolution because the courts aren’t open to hear these disputes for the most part. (If you read, the judge determined this case under “emergency” jurisdiction, but it’s going to be up to the judge and the court whether they want to take a case like this on an emergency basis.)

For many of us, we’ll have to make decisions now, with the information we have, and face the potential ire of the judge later on down the line. I’m inclined to think judges will be forgiving – after all, this is both scary and unprecedented. But, also, there’s no question that there’s lots of room for abuse here, and judges are often easily irritated by parents who they feel have flouted the rules to exercise control over the child’s other parent. The best interests of the child factors have most judges believing that the relationship with both parents is of primary importance, but where do you draw a line in the sand?

I’m not sure we have guidelines for you, except to say that you need to look at your case – and potentially discuss with an experienced attorney – before making big decisions that could impact custody and visitation later on. It’s better to ask questions now than it is to act aggressively and hope for the best. Remember, the consequences could be dire and could, potentially, involve a change in custody.
If you and your child’s father are both working from home, there’s probably not a lot of room to argue that the child should stay with one or the other of you. Still, it’s a good idea to talk one on one to an attorney about your specific case, and do the best you can to support the child’s relationship with both parents.

For more information, or to talk to an attorney, give our office a call at 757-425-5200.