Visitation with Sick Kids

There’s nothing worse than seeing your kids sick. Unless it’s having sick kids and knowing that, under the current custody and visitation order/agreement, they’ve got to go to their dad’s.

Whatever your feelings about or your relationship with your child’s father, having your children away from you while they’re sick is not at all ideal. If you’re like me (and because you’re reading this post, I kind of assume that you are), you want your children with you especially when they’re sick, no matter how cranky and difficult it makes them.

So, what happens when you’re facing visitation with sick kids? What choices do you have?

Well, obviously, first thing’s first: if you’ve got a signed agreement or an order entered by the judge, you’re best off to follow it, unless your child’s father agrees to something else in the interim. If you want, you’re welcome to make a big fuss about how you want to keep the germs in the house and protect him from getting sick, too (if he’s a germaphobe this may work) – but, unless he agrees, there’s nothing you can really do.

Technically, an agreement has less force and effect than an order of the court – unless it’s an agreement that was subsequently entered as a court order. No police officers or anyone else can really enforce an agreement without proof that it’s an order of the court, too. And calling the cops is what he’d have to do, if you withheld the kids during his parenting time in violation of the agreement.

Either way, though – order or agreement, you’re best off to follow it. Because, even if you’ve just got an agreement, if he petitions the court to have it entered as an order, the judge will likely do it. Then, he can show cause you for your failure to follow the agreement, or, worse—use your inability to follow the agreement as fodder for a later argument for a change in custody, or primary physical custody to him.

Do I have to notify him if the kids get sick while I have them?

Technically, you should, if you have joint legal custody. Non-emergency medical care is one of those things that you guys have to collaborate on, so, if the kids are so sick that medical care is necessary, he needs to be aware of and involved in any decisions you’re making.

You should let him know about scheduled doctor’s appointments, and make it possible for him to attend. Of course, use common sense here. You don’t have to wait a week to have a sick kid treated because dad’s impossible schedule means that it’s the only opening available; that being said, it’s probably nicest if you don’t deliberately schedule it at a time that you know will be inconvenient for him. I had a client who once said, “I felt immediate medical attention was more important than your schedule,” and, though it may have been true, it really didn’t resonate well with the judge and the Guardian ad litem.

That’s not to say that, if the child breaks his arm, you should wait until dad’s schedule clears to get him x-rayed. (In that case, it’s fine to call on the way to the emergency room and ask him to meet you there.) A well baby check up, though? No reason to consult your child’s father, and make sure to set the appointment at a mutually convenient time. You should make reasonable efforts to accommodate, in the same manner that you would expect reasonable accommodations to be made for you.

Keep in mind, too, that what’s good for the goose is good for the gander. If you don’t provide him with this information, or you make it difficult, chances are good that he will behave this way, too. If you don’t want to find yourself left out of medical appointments that may arise when the children are in dad’s care, you probably shouldn’t treat him that way.

He’ll do it anyway? Fine. You should always behave well, regardless of his behavior, especially if there’s a chance your case will wind up in court. I know it may seem frustrating – that you behave and he doesn’t and he gets away with it – but it’s never a good idea to go into court and make allegations against him that are the same as the things you’re doing. The judge won’t understand your need to be retaliatory, and it will undermine your arguments about his behavior. The judge is apt to think, “They’re both equally terrible!” and do nothing about it.

You don’t have to notify dad about every single little thing that occurs, but certainly anything that requires medical attention, whether it’s lice, ringworm, a broken bone, the flu, or pink eye – dad should be made aware of the situation. A little sniffle? Maybe not a big deal. But it’s generally best to communicate about the important issues.

What if the kids get sick or hurt when they’re with their dad?

It happens. Unless dad agrees to something else, you’re going to need to follow the custody agreement/order that is already in place.

This is also why it’s so important to treat dad the way you want to be treated. If you’ve involved him in details regarding the children’s medical care before, chances are much better that, when the tables are turned, he’ll involve you, too.

If dad wants to keep the kids, though, that’s his prerogative. The court would give him an opportunity to take care of them, and you’re likely going to have to, too.

What if we don’t have a custody and visitation agreement or order in place?

If you don’t already have a custody and visitation agreement or order in place, there’s not much that can be done. Either you or he has the complete right to have the children at any time, and no amount of police involvement can change that.

If it’s a problem, whether the kids are sick or healthy, you’re going to want to look into getting an agreement or order in place, so that you have more certainty where these things are concerned. It’s pretty terrible to just wonder what should happen and have no real certainty.

In some situations, it can be difficult to be confined by an agreement or order – but not having one in place can be unthinkable, too.

For more information about custody and visitation in Virginia, request a free copy of our custody book  or get copies of our free reports on custody issues in Virginia, like relocation, sexual abuse, and more. Give our office a call at 757-425-5200 to schedule a consultation or get more information.

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