We are all in
a very stressful and fearful time with the outbreak of the COVID-19 virus changing
the way we live our lives. Many people
have been sent home from jobs or limited in interacting in large groups. For our children, schools are closing and many
normal extracurricular activities have suddenly stopped. To stop the spread of this highly infectious
disease, we are being told to practice “social distancing”- staying away from other
people and especially larger groups.
But what
about families with custody orders? To
date there has been no clear message about how families should address this,
and for families who already find themselves in high conflict custody
arrangements, the strain will be tremendous and the path confusing. Should
periods of visitation with non-primary parents be discontinued along with other
“social distancing”? What will be the repercussions
if I keep my child from the other parent and how can I avoid them? Here are some clear answers to these
questions:
1. Don’t deny visitation to the other parent
unless you have a very good reason.
If you are
the primary caregiver and the other parent has periodic visitation, you may be
tempted to deny the other parent their weekend visitation during this crisis out
of general fear that your child may become infected at the other parent’s house.
Before you unilaterally disregard your
custody order, you should consider very carefully whether you have any real
reason to do so. The consequences of
violating the custody order may be very real and land you in real trouble with
the courts. Our Harris and Galveston
County Judges take a dim view of people violating orders- even if the reasons
are well intentioned. Denying visits may
result in severe consequences for you and may give cause for a change of primary
custody to the other parent or even a jail sentence in some cases.
2. Communicate and find common ground for
decisions.
Before you
decide on your own to deny visitation with the other parent, communicate with
the other parent about your fears and try to come to an agreement about temporary
modifications to the visitation schedule.
You may find they share the same fears about the child being in your
home. If your co-parenting has been high-conflict
up to this point, however, you may find this very difficult. But you must put your best effort
forward.
Even if you
have had difficulty in communicating in the past, both parents should try to
put that aside (at least until this crisis is passed). One of the best ways to handle the situation is
to adopt a business-like and professional attitude to deal with the issues at
hand. Try to be focused and avoid
emotional reactions. Tell the other
parent exactly what you want to talk about and stick to that only. If they try to bring up the past or get off
topic remind them of the urgency and importance of coming to agreements on how
to handle the visits during this crisis.
You both may have different viewpoints of what is the best action to
take with regard to keeping your child healthy.
With so many conflicting messaging on social media and the mainstream news,
it is not surprising you both would have different ideas. The most important thing is to be consistent between
the two parents. This situation is like
no other and was very likely not conceived of when you made your custody
order. You may be called upon to make
decisions that are outside the order. Try to find a neutral and reliable source for a
tie-breaking resource if you both disagree on how to manage this crisis. Try to agree on one source for
recommendations for your child’s safety and agree that you will both use that
source for co-parenting decisions that are not covered in your court order. You may agree to follow the advice of the
child’s pediatrician for guidance. This is especially important if your child
is immunocompromised or has another underlying health condition. Or you
could both agree to follow the latest recommendations found on the CDC’s
website or the Texas Health and Human Services.
Whatever source you decide on , it is important that you both avoid the
added conflict and stress of disagreement and you should find as much common ground
as possible. One good start in finding
common ground may be in that you both express your fears for your child and reaffirming
that you each love your child and have their best interest at heart.
3. Think of creative solutions.
What
solutions could you come up with that would satisfy each of your concerns about
infection and health vs. the legitimate right and need of the child having
contact with both parents? If infection
is a legitimate concern such as if one parent has been exposed to an infected individual,
is it possible to agree to temporarily have visits outdoors and agree to keep
the recommended distance from the child- perhaps playing catch, kickball or
similar activity? This may sound
outlandish in different times, but these are unusual circumstances. Can the parent have Facetime (or increased
facetime). Can you agree that the other
parent will have additional periods of time with the child to make up for time
lost during this crisis?
4. Get an agreement in writing.
Get the
agreement in writing and make sure each parent has a signed copy. Insist that each have it notarized if you
feel this is necessary. A signed agreement can be used in court to
defend yourself if the other parent claims you have unilaterally violated the
order.
5. If you can’t come to an agreement, you must file
a modification request with the Court.
If you legitimately
believe that child is at increased risk of infection if they are allowed visits
with the other parent and you can’t agree with the other parent on a
modification of the custody arrangement, then you must consider filing a Motion
to Modify the Parent-Child Relationship and request emergency temporary orders
to discontinue the visits. If you don’t
do this, you run a high risk of being held in contempt of court for denying the
other parent’s court appointed visitation.
You will also have to execute and attach a “significant impairment affidavit”
that details why you believe physical contact with the other parent would endanger
the child. The standard on getting such emergency
temporary orders however is very high.
General or undefined fears will not be sufficient. You will have to have special compelling
reasons to believe that visits with the other parent will significantly impair
the child’s health. Reasons that may
be warranted, if proved, could be:
- ·
The
other parent had close contact with someone diagnosed with COVID-19;
- ·
The
other parent recently traveled to Italy or China
- ·
The
other parent attended a high exposure situation such as the Biogen conference
in Boston that led to a breakout among attendees
- ·
The
other parent may have had contact with someone infected with COVID-19 AND, your
child has a compromised immune system or other underlying health condition.
Agreements
are like a vaccine against family conflict and are always the first and best
line of defense against the harm that comes to children as a result of parent
disputes. However, if agreements are
ineffective or unavailable, then it may be time to call an experienced family
law attorney.
If you have
any questions, please contact us at The Palmer Law Firm. We encourage you to schedule a free call with
one of our family lawyers, or come see us in person. We have leveraged technology with our online
client portal, electronic forms and e-signature document capacities to minimize
your need to make trips from your home to advance your legal issue. If you do choose to visit us in person, you
can rely on us for clean offices with restrooms and hand washing facilities and
hand sanitizer. We are here to
help. You can book your free appointment
right from our Facebook page or call at 832-819-3529.
