By: Brinda Gandhi and Swetha Gopalakrishnan
The global pandemic caused by SARS-CoV-2 or Covid-19, known more commonly as the Coronavirus is affecting every aspect of everyday life for individuals all over the world. As if child custody exchanges were not an issue during normal times already, the Coronavirus, is here to add to our child custody exchanges. Coronavirus is now impacting the daily lives of families all over the country in unprecedented ways.
According to the United States, Center for Disease Control and Prevention (“CDC”), the virus that causes COVID-19 is thought to spread mainly from person to person, mainly through respiratory droplets produced when an infected person coughs or sneezes.[1] Spread is more likely when people are in close contact with one another (within about 6 feet) in the community (“community spread”) in many affected geographic areas.[2] Further, has confirmed that based on available evidence, children do not appear to be at higher risk for COVID-19 than adults.[3]
As a result, the CDC’s goal is to limit spread of the virus through limiting contact between individuals in the community. The key to slowing the spread of COVID-19 is to practice social distancing. On March 19, 2020 California Governor Gavin Newsom issued a statewide shelter in place order wherein over 40 million Californians must stay home, except for when they leave to meet essential needs. This order was extended to continue through May 3, 2020.
Schools play an important role in controlling the spread of diseases, protecting vulnerable students and staff, and ensuring students have safe and healthy learning environments. The CDC’s guidance for childcare programs and schools varies based on the level of community transmission.
Pursuant to these guidelines, one of the CDC’s recommendations to schools is that they temporarily dismiss childcare programs and K-12 schools to slow the spread of COVID-19. However, despite closures, schools have been directed to work in close collaboration and coordination with local health officials to ensure continuity of education.[5]
The CDC childcare guidelines for parents recommend that parents limit their children’s time with older adults and practice social distancing. However, these social distancing and shelter-in-place rules do not directly affect custody orders.[6] While it may be tempting to disallow custody exchanges in order to follow CDC guidelines of social distancing, in the absence of court orders or regulations, it is imperative that parties adhere to current court orders and assess exposure risks to COVID-19.[7]
Although the COVID-19 is a unique situation which the parents have to keep in mind while navigating child custody exchanges, the decisions that parents have to make are similar that they would use in their everyday normal lives. The difficulty arises when and if the child has a special sensitivity, or anyone in a child or parent’s lifestyle universe has heightened risks associated with COVID-19. Regardless of the child’s special sensitivity or the other parent’s heightened risks of COVID-19, especially if they are active healthcare professionals on the frontline, parents should follow all CDC guidelines of social distances and self-quarantine for the time of the incubation period.
In California, the Shelter-in-Place order dated March 31, 2020 allows and includes Travel for parental custody arrangements as part of the “essential travel” by individuals.[8] Furthermore, the Notice by the Superior Court of California for the County of Santa Clara clarifies that COVID-19 pandemic is not, by itself, a reason to deny visitation or parenting time.[9] And, nor does the requirement to shelter-at-home justify, by itself, the denial of visitation or parenting time.[10]
Moreover, communication is the key, especially during the pandemic caused by COVID-19. Parents could also consider calling the child’s pediatrician in case the child was unwell and they are due for a custody exchange of visit from the other parent. Communication and understanding between parents is of high importance during the present scenario.
In the state of Texas, Seventh Emergency Order Regarding The Covid-19 State Of Disaster issued by the Texas Supreme Court clarifies that “[p]ossession of and access to a child shall not be affected by any shelter-in place order or other order restricting movement issued by a governmental entity that arises from an epidemic or pandemic, including what is commonly referred to as the COVID-19 pandemic.”[11] Similarly, the executive order in the State of Illinois orders all residents to stay at home starting March 21, 2020, however, carves out an exception for complying with court orders as essential travel.[12]
However, in Oklahoma, the Second Emergency Order Regarding the COVID-19 State of Disaster allows custody or visitation orders to be modified by written agreement if allowed by the assigned judge.[13] As such, a recent case in Oklahoma has come to light wherein an order was made by the Sac and Fox Nation District Court judge granting an Emergency Motion to Modify Custody and for Pickup due to the mother’s exposure to COVID-19. In this case, the judge approved an order denying the mother her visitation rights and temporary custody was extended to the father due to the mother’s occupation as a nurse working on the front lines and her potential exposure to COVID-19 patients.[14]
Likewise, in New Jersey, a physician working with Covid-19 patients was denied custody of her daughters in light of her potential exposure to the virus.[15] As a result of the mother’s profession, the father was granted sole temporary custody of the children. Due to the extreme measure approved by the court, the mother ultimately stepped back into a telemedicine role in order to receive custody and visitation rights to her children.[16]
In California, the San Francisco Superior Court Unified Family Court issued a Notice of Emergency Family Court Operations which details how it's handling emergency family law matters, including domestic violence restraining orders (DVROs) and ex parte custody requests.[17] The court states: “ex parte requests to change child custody or visitation orders will not be granted absent a very strong factual showing of imminent danger or severe detriment to the child.” Cal. Rule of Court 5.151; SF Local Rule 11.8(A). In light of such an order, an emergency request for temporary custody filed by one parent for her children due to her ex-husband’s role as a firefighter was denied in absence of factual showing.[18]
Similarly, the courts in the counties of Los Angeles, Riverside & San Bernardino have issued emergency orders for hearing emergency child custody requests which involve death or immediate imminent harm to the child. The Orange County Superior Court is clear that Covid-19 is not a reason to deny parenting time. Parents are encouraged to follow current custody orders keeping Health Authority and County Public health directives in mind.[19]
Staying up to date with Child Custody and Visitation Rights is extremely important for any family. Following current court orders is key, unless parties can come to an understanding out of court in writing. The courts will not appreciate filing emergency motions to modify custody, unless a child’s life is in danger or there is a strong factual showing of imminent harm to the child. To avoid a potential loss of child custody and visitation, individuals should be aware of their rights during these challenging times.
[1] https://www.cdc.gov/coronavirus/2019-ncov/faq.html#How-COVID-19-Spreads
[2] Id.
[3] https://www.cdc.gov/coronavirus/2019-ncov/faq.html#COVID-19-and-Children; https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html
[4] https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/guidance-for-schools-h.pdf
[5] Id.
[6] https://www.sccgov.org/sites/phd/DiseaseInformation/novel-coronavirus/Documents/executive-summary-3-31-2020.pdf
[7] Id.
[8] Id.
[9] http://www.scscourt.org/general_info/news_media/newspdfs/1%20FAM_%20NoticeReCCVPolicies.4.2.2020.pdf
[10] http://www.scscourt.org/general_info/news_media/newspdfs/1%20FAM_%20NoticeReCCVPolicies.4.2.2020.pdf
[11] https://www.txcourts.gov/media/1446251/209050.pdf
[12] https://www2.illinois.gov/IISNews/21288-Gov._Pritzker_Stay_at_Home_Order.pdf
[13] https://www.oscn.net/images/news/SCAD-2020-26.pdf; See https://www.mcafeetaft.com/navigating-family-law-during-covid-19/
[14] https://kfor.com/health/coronavirus/coronavirus-used-in-stroud-custody-battle-emergency-order/
[15] https://www.nytimes.com/2020/04/07/us/coronavirus-child-custody.html
[16] Id.
[17]https://www.sfsuperiorcourt.org/sites/default/files/images/Announcement%20of%20Family%20Law%20Emergency%20Operations%20%283rd%20revision%20-%2003-30-20%29_0.pdf?1586563462821
[18] See https://www.nytimes.com/2020/04/07/us/coronavirus-child-custody.html
[19] See https://www.courts.ca.gov/documents/appendix-i.pdf; https://www.sb-court.org/sites/default/files/News%20Notices/GO2ndAmendmentToImplementationOfEmergencyRelief.pdf; https://www.occourts.org/directory/family/pdf/Admin_Order_No_003.pdf; http://www.lacourt.org/newsmedia/uploads/1420204151712620_NR_GO_4-15-20-Final.pdf
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