Custody and Time-Sharing During COVID-19

As we all know, our lives and daily routines have been substantially affected by COVID-19, a respiratory illness that is highly contagious, that is commonly spread through direct contact with other individuals. For this reason, protective measures such as “social distancing” and “non-essential” business closures have been mandated by our state and federal governments. Although these measures are certainly temporary, they are wreaking havoc in many areas of our lives.

The question for families and family law attorneys, of course, is how do these mandates affect custody arrangements? There is nothing that has occurred in my lifetime to help inform the situation or provide guidance. Looking toward past epidemics, 1918 was the last major epidemic to affect our country and there were few divorces at that time, and even fewer custody arrangements. Therefore, it is up to us to provide direction for the next generation on how to manage time-sharing and custody orders during a time of pandemic and illness.

New Mexico state's family law court recently sent a letter addressing this issue:

“TO: FAMILY LAW PRACTITIONERS

FROM: THE FAMILY COURT JUDGES

RE: THE STATE OF EMERGENCY

STAY-AT-HOME ORDER

DATE: MARCH 23, 2020

As you are aware, the Governor of the State of New Mexico declared a State of Emergency on March 11, 2020 due to the COVID129 Coronavirus pandemic. We know that our governor is going to announce a Stay-At-Home Order to further combat this pandemic. We are asking that attorneys and litigants work diligently to find agreements regarding custody and time-sharing exchange orders. As to supervised visitation orders, the court does not have the authority to order that APN or the Neutral Corner or other agency remain open. The parties may reach an alternative agreement but if unable to do so, the court’s enforcement capacity is severely limited for the near future. Obviously, emergency motions may be filed and will be reviewed by the Court and handled as best as possible. Other options such as Skype, Facetime and general telephone contact should be explored during, what we all hope to be, a temporary arrangement.

The governor's health requirements do not supersede or suspend prior orders for time-sharing and custody or orders that do not involve a 3rd party or agency. Orders regarding counseling for non-custodial parents and service providers should continue forward in the best interests of the child if the provider is willing to continue and the other health considerations can be managed effectively by the provider. We all hope that the Stay-At-Home Order is not used as a weapon to refuse to negotiate alternatives for other visitation arrangements and that parents are not allowed to view the limited capacity of the court to operate as an opportunity to simply ignore the rights of non-custodial parents.

Until the pandemic is behind us and the emergency declaration(s) of the governor are rescinded, the court cannot return to full working capacity. Conducting business as usual is not an option, but the family court will remain open for emergency matters such as Orders of Protection and emergency hearings. We ask for your patience and understanding during this difficult and unprecedented time. Please know that you are in our thoughts and we hope you are caring for your health and for each other."

What This Means for Parents Sharing Custody

In a nutshell, the Courts are stating, that court orders need to be followed. What I have found, however, is that not all situations are the same and I can offer the following advice based on state and federal mandates as well as 25 years of experience in family law.

Hearings are difficult to obtain at this time so the best course of action should be to work out an agreement. If you withhold your child, it is likely your child will later be withheld from you. I frequently deal with “tit-for-tat” situations and they are not helpful. However, I know that not every case can apply such principles of kindness and “Do unto others.” Talk to the other parent. Discuss possible schedule changes that allow for the same amount of time-sharing. Call your attorney to help mediate a schedule change to accommodate everyone’s schedules.

The following examples illustrate some difficult time-sharing situations and possible solutions:

1. The parents reside in two different states

This case arose earlier this week, where father and child reside in California, while mother resides in Albuquerque, NM. By the time the exchange was to occur, both states had issued “shelter in place” policies. In this case, the visit did occur. We entered a court order with specific parameters, thus allowing the custodial parent to feel more comfortable with the visit. Those parameters include absolute respect of social distancing and language stating the child would not be retained under any circumstance even should travel restrictions grow more severe. The take-away here is time-sharing should occur even when two different states are involved.

2. One parent resides in a home with ten other individuals and the other parent works in a hospital

In this situation, neither home is particularly ideal, but neither is dangerous per se. I use this example to illustrate common sense. No one is absolutely immune to the possible exposure of COVID-19. You could unknowingly be exposed at the grocery store or gas station, while remaining healthy at work in a hospital. In cases such as these, the parents must have serious conversations regarding what each individual in the household is doing to protect his or herself from any exposure that could threaten other members of the household. But the child should not be withheld based on fear of exposure alone. In this situation, the parties should follow the court order.

3. Time-sharing when the child has a comprised immune system

This one is difficult, but court orders should be followed in such instances. The court was likely aware of the child’s health when it issued the custody arrangement. Conversely, the parties were aware of the health of all parties when they agreed to the custody order. Both parties must converse regarding what measures will be taken to ensure the health of the child. Cases involving sick children are always difficult, but what your child needs more than ever is sanity peace and agreement between his parents.

4. Time-sharing when one or both parties have been exposed to COVID-19

Government mandates are pretty clear here. The individual must remain in quarantine for 14 days. That is not to say there cannot be contact between parent and child. We all have the internet and are all finding numerous ways to communicate without meeting face to face. There is Skype, Facebook and Zoom just to name a few sites. Even though this may not be your ideal way to spend time with your child, they will find great comfort in communicating with you regardless. Even if you are not sick, communication as such provides your child a modicum of much-needed peace by simply seeing you are alive and well. Read stories to your child, help with homework, or make cookies together, all through the social media.

Call our firm today at (505) 544-5126 or contact us online to schedule your initial consultation.