I have been asked by several clients if they or the other parent can keep their child or children from visiting with the other parent if they are concerned about the Coronavirus. Since the impact of COVID-19 is unprecedented, there are no hard and fast rules but first and foremost, if your custody terms are in a court order, you should follow the terms of the order. Neither party is allowed to unilaterally change or violate the terms of the court’s order. If the child has been exposed to the coronavirus, then the parents should discuss whether the exchange can be made safely so as not to expose other individuals and whether the parent receiving the child will have the time and opportunity to care for the child.
If the parent that currently has custody is concerned that the other parent (a) has been exposed to the virus or has the virus, (b) would expose the child to catching the virus due to their work environment, or (c) does not believe social distancing is not necessary, then the parent should immediately file a motion for emergency custody alleging that the child will be exposed to physical harm if the court does not at least temporarily modify the court’s order. Although some judges may take an extreme position such as a Florida judge in this CNN article, the coronavirus should NOT be used as a mechanism to violate a court order unless there is a real danger to the child. “Fear” that the other parent is not careful enough or cautious enough during this time is not a reason to violate a custody order and will likely subject the parent to a motion and possible order of contempt.
Before filing an emergency motion to modify custody, you should take into consideration the health and safety recommendations from the CDC and your local government as well as common sense. If someone in your household has symptoms or has tested positive, you should inform the other party and quarantine yourself and offer to quarantine your child for 14 days or as otherwise recommended by your doctor. If this causes the other party to lose custodial time, it would be wise to offer the other parent make up time after the quarantine. Taking such steps, even if the other party does not agree, may help you avoid being held in contempt; but withholding children from visiting with the other parent because you are concerned that they may have been exposed is not enough.
See also these Custody and Visitation Recommendations During COVID-19 from the NC Family Court Advisory Commission.
If you have questions or concerns about whether to send your child for visitation or how to respond to the other parent who is withholding your child from visiting with you, give one of our family law attorneys a call at Law Firm Carolinas with offices in Greensboro, Charlotte, Wilmington and Raleigh.