Child Custody Questions during Coronavirus - Modern Family Law Child Custody Questions during Coronavirus - Modern Family Law
Child Protection

Child Custody Questions during Coronavirus

The Coronavirus pandemic has many families confused as to how to navigate issues relating to child custody. We receive many calls from parents with questions relating to the impact of the Coronavirus and California’s shelter-in-place order (“SIP”) on existing child custody and visitation orders. We try to address the most common questions here.

Can a parent withhold a child from the other parent due to Coronavirus and SIP?

No. Coronavirus is not a reason to deny parenting time. The general consensus is that all court orders must still be followed absent a modification. In fact, the Bay Area SIP makes an exception for travel to comply with a court order. It may be easy to comply with the custody and visitation order, but different considerations come into play when the other parent lives out of state. Communication is key. It is important for both parents to discuss and consider the child’s health and safety in deciding whether to exercise their parental rights. If the parents cannot come to an agreement, then it is important to contact an attorney to determine if an emergency filing is warranted under your particular circumstances.

What if the other parent withholds my child from me due to Coronavirus?

It is important to communicate and understand the reason why the other parent is withholding the child from you. Does the other parent have valid concerns that you can address? Or is the other parent simply using the Coronavirus as an excuse to withhold your child? If it is the latter, and the other parent is represented by an attorney, you can reach out to his/her attorney to demand compliance with the custody and visitation order.

If the other parent is not represented or the attorney is refusing to ask his/her client to comply, you can call the police. The police may ask the other party to comply, or at the very least, make a police report. Although many courts are currently closed to filings, other than emergency and domestic violence restraining order requests, you can file a contempt action once the court reopens. If you do, the police report can be helpful. It is also important to document any communications with the other party because you will have to explain to the court why the other party’s actions are unreasonable.

How should parents treat holidays, vacations, school breaks now that schools will be closed for some time?

The regular schedule should be followed as if the child is still in school unless the parents agree otherwise.

What if one parent is diagnosed with Coronavirus?

It is important to first communicate with the other parent to try to work out an agreement such as having the child stay with you until the other parent has recovered and offering the other parent liberal phone/video calls with the child and make-up time once the other parent has recovered. If the other parent does not agree, then this may be a situation where an emergency order is needed if the other parents continue to insist on exercising his or her parenting time. A child’s wellbeing and safety should be a priority and it is not in a child’s best interest to be exposed to a novel virus – the complete effects of which are still unknown. Be prepared, however, to prevent proof that the other parent has been diagnosed with the Coronavirus.

It is also important, if possible, for both parents to put a plan in place ahead of time in case one parent is later diagnosed with Coronavirus. It is common in such a situation for one parent to take the child until the other parent recovers.

What if my child is diagnosed with Coronavirus?

In such a circumstance, parents really do need to communicate. Chances are that both parents have been exposed and may test positive for Coronavirus, but there is also a chance that one or both parents test negative. That is why it is important to communicate and get tested.
There is no easy answer to this question, and it should be determined on a case by case basis. You want to consider whether the exchange should still occur if the other household has people living there that are at higher risk, such as grandparents or a newborn child. Most likely, the child should stay put until the child recovers.

What if the other parent is an essential worker?

There is a court order in place, and absent a modification, you are still expected to follow the order. This is where it is important to have an open and honest communication with the other parent. Ultimately, you are the parent and you have to weigh what is in your child’s best interest. This may be a situation in which filing an emergency request is warranted. If you do not follow the court order, then you are risking being in contempt of a court order.

What do I do if I have lost my job, or my hours have been decreased, due to Coronavirus and I cannot pay child support?

The common theme among all of our answers is communication because communication is very important in a co-parenting relationship. The first thing you should do is explain the situation to the other parent and offer to pay what you can. If the other party does not agree, then you should let the other party know, in a dated written communication, that you intend to seek a modification to lower child support as soon as the court reopens and that you would have filed for a modification but for the court being closed. Generally, child support modifications only can be applied retroactively back to the date that your request is filed with the court, and not back to the date in which you lost your job or your pay decreased. However, given that courts are now closed, it is not possible to file a request to modify support. That is why it is important to send the other party a dated written communication to try to preserve your right to have child support modified back to the date of your communication. It is unknown at this point whether the court will agree, but we believe that the court will give that filing for modification is simply not possible while courts are closed.

If you have any questions or concerns regarding your child custody and visitation order, we can help you answer those questions or address those concerns.

Posted April 14, 2020


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