Visitation Rights in the Era of COVID-19

Robert T. GlickmanManaging Principal, McCarthy, Lebit, Crystal & Liffman Co., LPA

As the global pandemic and outbreaks of the novel Coronavirus (COVID-19) develop around us, the health and safety of our children are at the forefront of our concerns. Individuals across the United States are encouraged to practice social distancing as much as possible. However, divorced parents with shared custody arrangements may have differing views on the level of containment measures necessary.

In an ideal world, both parents limit their social interactions and prevent their children from excessive socializing. Unfortunately, some parents are unable to practice social distancing or do not enforce rules that will keep the children safe.

When one parent chooses to dismiss the CDC’s COVID-19 community mitigation strategies, including social distancing, he or she increases the chances of transmitting the virus to his or her children during their visitation time.

Visitation schedules and parenting arrangements might look good on paper, but when a novel viral pandemic strikes, the constant back-and-forth between parents might not be so convenient or safe for anyone involved.  Both parents should have the opportunity to have frequent and continuing contact with their children, however, the right to visitation is not an absolute one.

One parent’s failure to implement protective measures during this ongoing pandemic might cause the other parent to consider withholding visitation, even though they know it may violate a court order.  By example, the mother enforces the recommendations of the CDC. She drops her daughter off with the father who is not able or refuses to follow CDC recommendations. By his lack of practising prescribed social distancing, he potentially exposes his child to the virus and sends her back to the mother when the visitation ends.

This creates a terrible situation for the parents because parents have to consider the safety of children as it relates to their own behaviour.

There is most likely increased risk for children with underlying medical conditions, this too should be weighed when considering whether visitation is in the best interest to the child’s health and safety. If frequent and continuing contact with either parent is not in the child’s best interest as a result of the parent’s social habits, those concerns should be immediately expressed to the court by way of filing to modify the decree allocating parental visitation rights.

A Court (if you are able to access one) may place just and reasonable conditions on visitation by way of order or decree. In determining whether a modification of existing parental rights is appropriate, the court will analyze: (1) whether there has been a change in circumstances; (2) whether a modification is in the best interest of the child; and (3) whether the harm resulting from the change will be outweighed by the benefits.

These are tough times and tough questions further complicated by the virtual closure of the courts. In the example above, what should the first parent do?  This is a case by case answer, but all parents should be proactive. Seek counsel before making decisions that could later affect your parenting rights; understand the implications of violating court orders; make filings with the court; reach out to people that have served as mediators in the past to broker disputes (lawyers, doctors, social workers, etc.); and do your best to make grounded decisions together.