Part I – A Cop Out for Custody Issues?
When the COVID-19 outbreak began, many families had custody orders already in place. Parties knew when they would be seeing their children and for how long. However, due to the stay at home order, that has drastically changed. With the rest of the world trying to get used to this “new normal”, many families have found it challenging to find ways to safely adjust while still adhering to their custody order.
Problems start surfacing when parents start to overuse COVID-19 as an excuse to keep their children away from the other party. Some parents have been withholding their child from the other party claiming that it is in the child’s best interest to avoid infection. There have even been attempts by parties to have one another tested for COVID-19 before even considering exchanging their child. Many parents have begun to fight back, claiming they have been following social distancing orders and sanitizing their homes. However, some parties cannot seem to go to the grocery store anymore without the other parent quickly contacting their attorney to say they will not exchange the child with the potentially infected parent.
We do not want parents to have to sacrifice time with their children, but the question is, how can we exchange children safely? Since the outbreak, courts of all jurisdictions have been working out a way to respond to the unilateral decision being made by some parents that they will not exchange their child until the stay at home orders are ended. In North Carolina, the Family Court Advisory Commission (FCAC) released Custody and Visitation Recommendations During COVID-19 to provide guidance to families with existing custody and/or visitation orders. The full list of guidelines can be read here.
Can COVID-19 be used as an excuse to file for emergency custody? Some parents have attempted to file for emergency custody of their child in order to avoid a custody exchange, though fear of COVID-19 is not a legitimate reason to do so. To file for ex parte emergency custody, the child must be exposed to a substantial risk of bodily injury or sexual abuse or there must be a risk that the child will be removed from the state.
Although parents should adhere to CDC’s guidelines and the FCAC’s recommendations, each family is unique and parents should use their best judgment regarding visitation. For example, parties whose jobs are putting them in constant contact with strangers may have a greater risk of exposing their child to infection during visitations. Parties who believe they have a reason not to exchange children, such as a history of neglect by the other parent, but cannot obtain an emergency custody order may also want to weigh their options for visitation and consult with an experienced family law attorney.