Managing COVID-19 Exposures While Coparenting

Posted on Dec 15, 2021 by Katie Carter

These days, it seems like we’re all just seconds away from losing access to the pieces that keep our lives together. For parents, one of the biggest concerns is that, at any moment, a COVID-19 exposure or breakout could erupt, causing disruptions and limiting our access to our childcare providers and schools, totally disrupting our lives and making work impossible.

I say “we’ and “our”, but today I’m talking about me. I’m in this exact position right now, and wondering how to make my life work moving forward. Fortunately, we’re all healthy and we’re not high risk anyway, but it’s frustrating to think that factors you can’t control can suddenly swoop in and disrupt your entire life and ability to work at full capacity.

Still, this is an issue that comes up ALL THE TIME in custody and visitation cases anymore. And it’s sort of a complicated question, even now, because even though the pandemic isn’t a new situation, there hasn’t been a ton of judicial involvement yet, even though there’s been a million different parents struggling with how to coparent through these new challenges.

We face a certain amount of COVID-19 risk in our every day life. If we work, send kids to school, go to church, dine out, ride public transportation, attend sporting events or concerts or live theater, we’re at risk. Some of that risk can’t be helped; it just is. Obviously, we have to work. The kids have to go to school.
To the best extent that we can, most people try to follow guidelines for masking and social distancing, and many people are vaccinated. It’s still disruptive.
One of the most challenging parts of all of this is when parents disagree about their level of acceptable COVID-19 risk and how to handle the associated challenges.

Vaccination Status

To vaccinate or not to vaccinate is an ongoing battle, and it’s heating up as the vaccine becomes available for younger and younger children.
Ultimately, vaccination falls under legal custody. Legal custody, which is almost always awarded jointly, refers to the right to make three types of decisions on behalf of the child: (1) non emergency medical care, (2) religious upbringing, and (3) education.

This definitely falls under the category of ‘non emergency medical care’. Emergency medical care, on the other hand, would refer to, say, surgery to fix a broken leg or an appendectomy in the case of appendicitis. A COVID-19 vaccine, however much you want (or don’t want) your child to have it, is just not an emergency.

Since it’s awarded jointly, both parents are in on the decision automatically. But just because one opposes the decision doesn’t mean that it wont happen; that would give that parent unilateral decision making power, and that’s not the way joint legal custody works.

If you can’t agree, you can take the issue to court. You’ll introduce your own evidence and experts, and your child’s father will have an opportunity to do the same. Then, the judge will render a verdict.

Schools and Daycares

Probably one of the BIGGEST risks that we all take is with school and daycare. To some extent, it has to happen – but that doesn’t mean that there’s only one choice available.

Do you send the children to private school, because they stayed open through the pandemic? Do you bring in a nanny, rather than a larger institutional daycare, to limit your exposures?

There are a million different options and, as you can probably imagine, parents often disagree.

Again, it comes down to joint legal custody – education. If you can’t decide, the judge will have to hear the evidence and render a decision. In general, private school is often a hard thing for judges to mandate because of the expense associated, but the judge will decide if the parents can’t.
Unclean Hands: Do as I say or as I do?

One of the things that is the most problematic is when the parents disagree – but then turn around and do something that isn’t consistent with their professed beliefs.

Does he complain that you send the children to daycare because of the risk of exposure – but then turn around and introduce the children to his new, unvaccinated girlfriend? It’s inconsistent.

If you’re worried – really, truly worried – about COVID-19 exposure, then you’re going to want to behave in a consistent way. You can’t naysay when he wants to do something, but be flexible about the rules when it suits you. That’s going to really undermine your argument in court.

If you’re concerned, you should be concerned. You should apply the same rules to yourself that you do to your child’s father. You don’t get to decide, on a case by case basis, what’s acceptable and what’s not. Well, you can, but it can undermine your case later, especially if it looks like you’re being deliberately capricious.

Lawyers call this ‘unclean hands’, and it basically means that we’re going into court without a clear conscience. You can’t, for example, blame him for failing to pay child support when, at the same time, you’ve withheld visitation. Two wrongs don’t make a right, as they say – and, in a court case, it makes you both look like jerks. If you’re going to try to hold him to a standard, you need to make sure that you are meeting that exact same standard. Even if he’s being a jerk (and maybe ESPECIALLY if he’s already being a jerk), you want to make sure you are beyond reproach. The more jerky he’s being, ideally, the more angelic you should become.

I know that these situations are challenging, and there’s no real legal standards to base your decision making on. We’re all flying by the seat of our pants here, so it’s important to understand how the decisions will be made in the event you and your child’s father can’t make those decisions together.

For more information or to schedule an appointment to discuss your concerns one on one with a licensed and experienced Virginia custody attorney, give us a call at 757-425-5200.