What should I do if my child’s father is using coronavirus to keep my child away?

Posted on May 8, 2020 by Katie Carter

Even though Governor Northam’s order specifically allows you to leave your home in order to exchange a child pursuant to a custody and visitation order, there are a lot of parents who are using fears surrounding coronavirus as an excuse to deliberately withhold a child.

I guess that’s always the case. These thing are inherently rife with ways to purposefully misunderstand and willfully ignore, especially when that parent can stretch to make some kind of “best interests of the child” claim. There are all sorts of issues here – the fact that the courts are closed is a huge one, but there are other, related concerns as well. Travel is risky, sending the child to a home with an immune compromised person, an essential worker, or stepchildren coming and going from home to who-knows where… The list goes on and on.

And I get it, partially. I mean, we’ve never been here before. We are all a little extra nervous. There’s a lack of PPE, hand sanitizer, and other essential items. All the news stories are increasingly dire. Our investment accounts have taken big hits. Many people are out of work, or, if they’re classified as essential (something that I had literally never given a single thought to before now), they have to go out and risk infection on a day to day basis. It’s a weird time.

And, to some extent, I understand the difficulty surrounding custody and visitation. But I also recognize that there is a ton of potential to abuse the murky waters that we’re in, and, with the courts closed, there are often few immediate repercussions to this kind of behavior.

A couple of our clients have experienced these issues lately, and that’s why I’m writing this today. It’s an uneasy time for everyone, but especially for the moms facing extended and unplanned time without their children because their children’s fathers are flouting the governor’s order and refusing to return the children for one reason or another.

I wrote a few weeks ago about an ER doctor in Florida who temporarily lost custody on an emergency basis because of her work, and the resulting risk of infection. The court in that case deemed it in the child’s “best interests” to be with dad for the interim period, but also recognized that more FaceTime or skype calls might need to happen, and that mom would have the ability to make up the time after all this is over.

So, if this is happening to you, what can you do?

1. Document, document, document.

Make sure you’re calling, texting, FaceTiming, and doing whatever else you can to continue to reach out to your child’s father and your child. Offer to discuss precautions, if your child’s father has identified your work, your stepchildren, or any other risk factor as the reason that he doesn’t plan to exchange the children as agreed upon. The more of these discussions you have – or try to have – the better. It’ll show your willingness to coparent, and his unwillingness to discuss options.

He doesn’t get to just dictate how visitation will go. Well, that is, he can in the short term, but it’ll reflect poorly on him later.
Make sure you’re keeping track and, to the extent possible, communicating in writing.

2. Talk with your attorney about filing a show cause petition.

It may or may or may not be the time to file right now, but talk to your attorney about your options in your particular case. If he’s flouting a court order, there should be consequences. Whether you wait to set a hearing or whether you and your attorney intend to file right away, he should know that you’re serious about enforcing the court order – especially if you’ve already followed the advice in point #1 and have tried to communicate with him about the steps you’ve taken to mitigate the risk of infection.

3. Wait – I’m sorry to say – until the courts reopen, and use this as an opportunity to argue for a change in custody.

Courts don’t like this kind of behavior. They like to see parents who can effectively coparent together and, if your child’s father is unfairly dictating terms to you, that’s something the judge should know.

A good reason for a change in custody would be one parent’s unwillingness to follow the current custody order and, if dad is being completely unreasonable, that’s going to show up. He’ll need to defend his choices in court sooner or later, and if his actions are indefensible, I think it will show.

You also would be within your rights to ask for all that time back as make up time – something you definitely shouldn’t forget.
I know it’s especially scary right now because we don’t know how long this is going to go on. There’s no vaccine yet and, without it, it seems like normalcy is a long way off. It’s hard to say how long it’ll be before the curve is really and truly flattened.

For more information or to talk to one of our attorneys about your husband’s withholding of the children during the coronavirus pandemic, give our office a call at 757-425-5200.