Questions are arising about visitation during the COVID-19 pandemic. For example, a custodial mother is concerned that she should not allow her children to visit with a parent who is working in health care due to the increased risk of exposure. Or, given the various State orders, parents are concerned about the children being taken to another household. Or, a parent might be concerned about the other parent taking the children to a park or open campground. What is the answer?
The general rule is that existing court ordered access to children must be allowed unless otherwise ordered by a court or unless there is a clear and present danger to the children. In other words, unless there is a court order to the contrary, visitation must be allowed. If there is a case where a parent knows the other parent has been diagnosed with the virus, then that might present a case for denial of access, but any person denying access should consult an attorney before doing so.
Courts in different parts of the country have proactively weighed in on this issue. All of the orders I have seen make it clear, in the first instance, that there should be no deviation from existing orders. Of course, there are some details.
The Supreme Court of Texas entered a blanket order on March 24, 2020 plainly and unequivocally stating:
Possession of and access to a child shall not be affected by any shelter-in-place order or other order restricting movement issued by a governmental entity that arises from an epidemic or pandemic, including what is commonly referred to as the COVID-19 pandemic.
The Chief Justice of the Massachusetts Probate and Family Court issued a statement which states:
Parenting orders are not stayed during this period of time. In fact, it is important that children spend time with both of their parents and that each parent have the opportunity to engage in family activities, where provided for by court order.
The Massachusetts directive also deals with parents who must quarantine, stating:
In cases where a parent must self-quarantine or is otherwise restricted from having contact with others, both parents should cooperate to allow for parenting time by video conference or telephone.
The Family Court in Orlando issued a detailed order which provides the following rules:
Existing orders must be followed, unless there is a “shelter in place order.”
In the event the of a “shelter in place order,” the parties are to try and agree where the child should be and, if the parties cannot agree, the parent with the majority of timesharing (183 overnights) shall keep the child(ren) until the shelter in place order is lifted, or a Court Order is entered. “Make up time” will be considered when the shelter in place is lifted.
Videoconferencing and phone contact shall be honored as set forth in the parties’ Parenting Plan and should be increased to “regular and consistent contact” to alleviate fears and concerns the child(ren) may be experiencing during this time.
Parents are cautioned to act reasonably in regard to the other parent.
In Mississippi, one distinguished Family Court Judge, Judge Robert Logan, issued a Memorandum on April 3, 2020, that his examination of Mississippi’s Executive Order regarding the virus did not reveal a basis for denying visitation.
Given the precedents of the sample of orders I have seen, and given the general rules of visitation, the following are not reasons to deny visitation or custody:
The other parent works in a field where they are exposed to the virus, such as a nurse, doctor or first responder.
The other parent travels for a living, or travels to a “hot spot” such as New Orleans. (However, these traveling parents should be hypersensitive to safety)
The other parent wants to take the child somewhere, such as to a campground, but that is within the legal limits of current State protective orders.
The other parent has family members or neighbors that the other parent is worried about.
If a parent is diagnosed or is subject to a imposed quarantine, they should decline visitation, but the other parent should go to great lengths to allow the child(ren) contact with that parent through phone, facetime, skype, etc.
These same rules would apply, in my opinion, to grandparents who have been awarded visitation pursuant to order.
All courts have indicated they will be open to calls about these issues, but that they are expecting people to act reasonably and in the best interests of children who may be quite scared during this time and need the support of both parents.
If you are a parent who has concerns over these issues, contact Chinn & Associates at 601-366-4410.