Amid the stay-at-home orders, the issue of child custody exchanges has emerged as a concern among separated families. Some parents have found co-parenting to be easier during the pandemic. Many other co-parents have not been so lucky. Families are looking for guidance on whether to follow custody orders during the pandemic. Co-parenting continues to be complicated by social distancing and stay-at-home orders. As courts across the country shut down, the concerns began to include how to handle emerging and unsettled custody matters. Things can become a bit chaotic when parents are fearful about the health and safety of their children. It can become even more so when the parents are engaged in a custody battle.
The American Academy of Matrimonial Lawyers released pointers at the start of the social distancing. The pointers encourage co-parents to (1) follow court orders; (2) follow state and local orders; (3) base parenting decisions and choices on reliable news sources; (4) use highest level communication skills with a co-parent; (5) be honest; (6) arrange to make up for lost time; and (7) learn how to be virtual. These pointers are a good starting place for a discussion, but they do not solve a custody crisis.
The first issue arises as parents and lawyers try to decipher whether custody orders and stay-at-home orders are in conflict. The general rule of thumb seems to be that parents should continue to exchange custody pursuant to a court order during a stay-at-home order. Parents are asked to treat custody exchanges as essential. Some states have specifically stated that custody exchanges pursuant to an order are permitted. The Ohio stay-at-home order, dated March 19, specifically includes “Travel required by law enforcement or court order, including to transport children pursuant to a custody agreement.” Some states have said transportation for care of child is essential, leaving interpretation to allow for custody exchanges. Parents should treat private custody agreements like custody orders, even though courts are providing guidance about private orders.
There is no precedent for how to handle this situation in a custody matter. Lawyers honestly tell clients they are not sure what will happen during the court closure. In the same breath, lawyers are telling clients to remain calm and act in a way you can later justify to a judge. Courts are issuing directives that custody orders should be followed. In Allegheny County, Pennsylvania, the President Judge of the Court of Common Pleas issued an administrative order saying that custody exchanges, pursuant to orders from the Court, should continue with “consideration for the safety of the child.” Delaware Courts have issued a statement that encourages people to keep following custody orders. Some courts have issued guidance on what to do in the event of potential exposure to COVID-19, like Bucks County, Pennsylvania.
Courts are asking parents to be reasonable and stay calm. They are looking for realistic solutions. No one has a pandemic clause in their custody agreement. There is no correct way to co-parent during this time. Parents need to communicate with each other. If changes need to occur, make the request and explain why. Do you want to change the schedule to reduce travel or potential exposure? Are you concerned about travel between houses because rest stops are closed? Is the third party supervisor no longer available because of social distancing?
As parents talk about the physical custody schedule, they need to consider other aspects of the parenting relationship. The parents might need to be on the same schedule about remote schooling. They may need to incorporate Skype, FaceTime, or Zoom to have contact with children if they go longer between exchanges.
Front-line workers are facing this custody crisis even more. Disputes are arising about whether front-line workers should retain custody of their minor children. Courts across the country are dealing with this issue. The court response are varied. Many are saying the increased risk of exposure to coronavirus is not enough to suspend custody rights. Some courts are modifying or suspending custody because of increased risk. Where courts are not open, parents are exercising self-help. A parent exercising self-help must be able to justify their reasoning to a court when it reopens; the parent should keep in mind a judge will likely hear numerous similar cases. It is unclear how the judges will react when courts reopen. Some frontline workers are voluntarily relinquishing custody. It is unclear if these parents will be eligible for make-up time.
When it comes to addressing the pandemic directly, the topics become more complicated. Parents need to openly discuss their social distancing habits. The parents should be on the same page about how they explain the stay-at-home policies to the children. There needs to be a sharing of information if the child is exhibiting signs of anxious behavior and what those behaviors are. Is the child cranky, lashing out, sad, or tired? These behaviors might be different in each household.
Some courts have limited access to emergency matters only. The determination of what is an emergency can be subjective. In Florida, an Emergency Room doctor lost custody of her child because of her increased risk of contracting the coronavirus at the trial court level. The appellate court overturned the decision days later, and the parties returned to split custody. There is no set standard for what happens when a parent or a child is exposed, or potentially exposed to coronavirus. This may be complicated if the child, a parent, or a household member have a condition that may make them more susceptible to coronavirus or more susceptible to complications from coronavirus.
In each jurisdiction, a parent has to determine if there court is open or closed. If the court is closed, is it closed to all matters or just non-essential matters? What is an essential court matter? If there is an emergency custody matter, how do you get it to a court?
Courts that have an electronic filing system for custody matters might be easier to navigate, especially if the filing system forwards the documents to the judge. In these instances, court requests about custody can get to a judge in a socially distant society. Courts where requests were hand delivered or mailed to the judges were likely harder to navigate as the courts shutdown. All of a sudden, there was no way to contact judges.
Some courts have adjusted. The adjustment has occurred with various degrees of ease. Virtual or real drop-off boxes have been created. Settlement and status conferences are occurring via conference or video call. Cases are beginning to move forward again. Courts are exploring virtual hearings. Each jurisdiction is providing a different level of access to the family court.
Some courts have not adjusted. Some courts remain closed with no ability to request relief, which could create a backlog of cases that seems insurmountable. On the other hand, it could force parents to find a solution because there is not intervention available.
As society remains shut down or begins to reopen, the issues surrounding custody cases will continue to change. Co-parents will have to navigate these issues thoughtfully. Hopefully, as governments issue stay-at-home orders and modifications, they will specifically address custody orders. Hopefully, courts will continue to issue guidance about custody during pandemics. As this moves forward, parents need to stay calm and be thoughtful.
For more on COVID-19, see our special coverage.
Julie R. Colton is a partner at Obermayer Rebmann Maxwell & Hippel LLP, where she focuses her practice in family law. She also serves as an adjunct professor at the University of Pittsburgh, where she teaches family law.
Suggested citation: Julie R. Colton, Child Custody During COVID-19 Stay-at-Home Orders, JURIST – Academic Commentary, April 23, 2020, https://www.jurist.org/commentary/2020/04/julie-colton-child-custody-pandemic/.
This article was prepared for publication by Cassandra Maas, Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org
