By: Michael Lehr    

The number one goal of any resident of Virginia during the ongoing COVID-19 pandemic is ensuring that you and your family is safe and healthy.   This is especially true for the vulnerable members of our society such as the immunocompromised, the elderly, and our children.  As of April 20, 2020 children make up less than 3% of the total number of reported coronavirus cases across the Commonwealth.  But, this does little to calm the fears of separated parents who are concerned for their child’s well-being.  This concern is further heightened when case specific factors are taken into account, such as the employment of your child’s other parent and their willingness to adhere to social distancing guidelines and Governor Ralph Northam’s Executive Order 55.  The executive order is commonly referred to Virginia’s “Stay at Home” order requiring residents to remain indoors except for essential needs and an exhaustive list of exceptions. 

While you may not think employment would play into modifying a custody arrangement, it did recently in Miami, Florida where a frontline ER doctor lost custody of her daughter over COVID-19 fears.  Dr. Theresa Greene is currently appealing an emergency order which granted full custody of her daughter to her ex-husband.  After separating two years ago, Dr. Greene and her ex-husband split custody with their daughter evenly until the first week of April 2020 when—upon the motion of her ex-husband—a Florida judge ruled that the child should stay with the father amidst coronavirus fears.  The reasoning:  Dr. Greene works on the frontlines in a Miami hospital and is tasked with treating COVID-19 infected patients.  While she wears appropriate personal protective equipment (“PPE”), the court determined that “to insulate and protect the best interests and health of the minor child, this Order must be entered on a temporary basis[.]” 

Upon first glance, the Florida court’s emergency order may seem to be a direct response to the COVID-19 pandemic, but in reality, it parallels any emergency custody order.  In other words, one parent may file a motion with the court to modify the custody/visitation arrangement amongst co-parents based upon some new fact or concern which materially changes the circumstances.  The Florida court believed that the onset of COVID-19 changed the circumstances in such a manner that it is in “best interests of the child” to stay with her father.   Virginia follows this same standard of review when considering such a motion to modify custody or visitation.  

Under Virginia law, if a court finds that relocation is not in the best interest of the child and/or that maintaining the status quo is in the best interest of the child, the court will likely deny any modification request.  Importantly, the Court of Appeals of Virginia specifically stated that the best interest of the child must be viewed given the circumstances at the time of the decision.  Therefore, any court must consider not only the COVID-19 pandemic, but each parent’s respective response to the virus given their job, social conduct, and any other pertinent factor.  If the court then determines that their conduct has created a negative, material change in circumstances it may modify the custody agreement, just as the Florida courts did with Dr. Greene.

While COVID-19 is an unquestionably severe change in circumstances, nothing in any of Governor Northam’s executive orders, nor any order from the Supreme Court of Virginia has affected current custody schedules for Virginians.  In fact, Governor Northam’s Executive Order 55 expressly states that there is an exception for fulfilling child custody arrangements.  Therefore, even if you or your co-parent are concerned regarding the virus, you should talk to an attorney before deviating from the provisions in your current custody arrangements without instruction from the courts.  You should further discuss concerns with your co-parent.  If possible, put all discussions and any agreements to modify—along with any disagreements—in writing.  This way there can be no misunderstanding regarding your concerns and the other parent’s response.

If your co-parent truly believes that your child’s safety is at risk due to your employment, ensure that you are always adhering to all social distancing measures and wearing appropriate PPE while at work.  Explain to them the efforts you are undertaking to keep your child safe and healthy and attempt to show them how you’ve gone above and beyond recommended safety measures.  Finally, if they refuse to concede your actions are appropriate, and threaten to take the next step—filing an emergency motion with court—remind them that the terms of your custody agreement are in full effect.  In fact, the courts may hold that their failure to abide by a custody order is in contempt of court which comes with civil, and potentially criminal, penalties.

Currently, the Supreme Court of Virginia has continued all civil matters through May 17, 2020 due to the COVID-19 pandemic but has made a specific exception for “emergency child custody or protection cases.”  Meaning, for a court to hear your co-parent’s concerns they must show that your child is in imminent danger, rising to the level of an emergency.  It remains unclear whether merely having a job in the healthcare industry—such as Dr. Greene in Florida—constitutes an “emergency” under the Supreme Court of Virginia’s emergency order.  Therefore, it is highly recommended you talk to an attorney immediately before taking any action in violation of a current court order.  Modifications to custody agreements can only occur upon the court’s entry of a new custody order or your own private agreement with the co-parent. 

As the Florida court described in its order, the purpose of modifying a custody arrangement in Virginia—even temporarily—must follow a material change in circumstances and be done in the best interests of the child.  Because it is unclear where the Virginia courts lie on this issue consulting with an experienced Virginia family law attorney becomes all that more important. Remember, whatever you do can impact a custody case later on that was not raised during the pandemic as an emergency.  You need the help of a competent attorney to make sure you do not make a mistake that may jeopardize your position in a later custody dispute that goes to court.