What if a shelter in place order is issued? What about visitation?
I keep hearing a lot of “what ifs” lately, and it makes sense. There hasn’t been another pandemic like this in living memory, and these are exceptional times. Every morning these days, I get up and check the news, terrified of what I might see.
I keep seeing news articles and hearing rumors that suggest that total lock down is on the way. Maybe it is, maybe it isn’t – but, either way, as a mama, it’s scary. And you’ve probably got a lot of questions about what to expect and what might happen, especially if you’re already under a custody and visitation order or have an agreement between you and your child’s father.
What happens if a shelter in place order is issued?
I hear your fear, and I think I know what you’re asking. Firstly, “If a shelter in place order is issued and my children are with their father, can he keep them from me?” And, secondly, “If a shelter in place order is issued and my children are with me, can I keep them with me?”
Like any other piece of legislation, you’ll want to read it first. Since Virginia doesn’t have a shelter in place order issued at this point, I don’t know the answer – but I do suspect, based on the language I’ve seen in other states, that visitation will be addressed and encouraged.
Remember, you’ll be able to go out and do necessary grocery shopping, go to pharmacies, take the dogs to the vet, etc. I think it is extremely unlikely that an order would be issued that would prohibit visitation exchanges.
So, to answer in no uncertain terms: no, I don’t think that the kids will be stuck with dad if a shelter in place order is issued during his parenting time. I also don’t think that you’ll be able to justify keeping the kids with you and not exchanging with dad if it happens during your parenting time.
But the courts are closed, so, who can stop me from keeping the kids?
It’s true. The courts are closed. But petitions can be filed, and, eventually, the courts will reopen. Ultimately, I don’t think a judge would look to kindly on one parent or the other withholding the kids without super duper good reasons. A vague “I just didn’t feel they’d be safe,” or “He wasn’t following social distancing protocols” wouldn’t be enough. You’ll need much more than that. If you have specific situations that you want to discuss, talk to an attorney. If you want to discuss with one of our attorneys, give our office a call at 757-425-5200.
The way I see it, it’s better to ask the question and get the honest answer, whether you like it or not, than to behave reactively and end up harming your custody case later on down the line.
With the courts closed, there are plenty of opportunities for people to make bad choices. There’s no question that one of you could get away with some pretty egregious behavior right now, and I’m not sure when you’ll have to answer to the judge for it. But I think it’s also often better to follow the golden rule, if for no other reason than to avoid a no holds barred fight with your child’s father – and your children stuck in the middle of it as the pawns.
Follow your current order, unless there’s some unexpected reason that you might not be able to, until something else changes. If a shelter in place order is issued, look at that specific language, and follow it.
These are crazy times. I know that it’s really uncomfortable to worry even more about your children than you already would. Between working (or not, which may be worse) from home, schools being closed, feeling the need to homeschool your children, custody and visitation issues, the fear of contagion… It feels like a little bit too much.
What do I risk if I keep them anyway, and just violate the order? I feel like I need to keep my kids safe.
It’s hard to say. I think it’ll be awhile before anybody gets into court, but, ultimately, these are the kinds of things that I see people losing custody over.
If the judge feels like you can’t effectively coparent, you may find that you’ve lost the privilege. Your child’s father could, potentially, get primary physical custody. I don’t honestly think it’s a risk worth taking, especially in this climate. I’m afraid it would look very convenient and opportunistic to take too much control during the pandemic, and you’d do much better to share custody the way your order or agreement reflects.
But I really have a health and/or safety concern! Do I really have to send them?
Get legal advice specific to your situation before taking it upon yourself. And then, try to file an emergency petition. The courts are still hearing some emergency cases, so you may get heard if it’s that big of a deal.
If not, at least you’ve filed a petition; you’ve secured a spot in line so when the court does open back up, you’ll be heard sooner than people who wait longer to file.
You’re right to be asking these questions, and you surely can’t help but worry about your children in times like these. It’ll be okay, though. Things will go back to something resembling normal sometime soon, and you won’t always have to be on such high alert. Hang in there, make the right decisions, and spend time with your babies.