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By: Michael Lehr

            The ongoing COVID-19 crisis has changed our society including how we interact with other people and our own families. Virginia is not immune to the virus’ impact and many facets of our communities have been similarly affected.  On March 30, 2020 Governor Ralph Northam issued Executive Order 55 which is commonly referred to as a “Stay at Home Order.”  The Executive Order reinforced widely practiced social distancing policies to limit the spread of the virus within our state.  In the Executive Order the Governor required that Virginians stay home at all times with a limited number of exceptions, including but not limited to: “[t]aking care of other individuals, animals, or visiting the home of a family member” and “[t]raveling required by court order or to facilitate child custody, visitation, or child care.”  However, given the destructive nature of the COVID-19 virus, this raises legitimate questions of how separated/divorced parents should act, especially when their current custody and visitation arrangements may put their child’s health and safety at risk. 

            For example, say you are a custodial parent who knows that your child’s noncustodial parent works in an industry which often exposes them to the general public or infected persons.  Or, perhaps your child is immuno-compromised, and you are concerned that their other parent isn’t taking necessary steps to social distance.  Regardless of your situation, your concerns for your child’s well-being are likely real and well-founded.  However, these concerns alone will not necessarily dictate that the court will hold a hearing to modify your current custody and/or visitation arrangement. 

What makes this situation more complex is that on March 16, 2020, the Supreme Court of Virginia issued a second emergency order declaring a “judicial emergency.”  The order suspended all civil cases through April 26, 2020 with exception to “emergency matters, including but not limited to, quarantine or isolation matters, arraignments, bail reviews, protective order cases, emergency child custody or protection cases, and civil commitment hearings.”  Meaning, to have the court hear your concerns you must how that your child is in imminent danger rising to the level of an emergency.  Currently, there is little guidance on what constitutes an emergency, and even more limited guidance on when a court will modify custody and visitation orders as a result of the pandemic.   Even if you believe that your situation rises to that of an emergency, there is no guarantee that a court will agree.  It’s important that you attempt to resolve your concerns with the noncustodial parent without discontinuing the current visitation and custody arrangement.

If you cannot reach such an agreement with the other parent, consider factors similar to those which Virginia courts utilize when determining the “best interests” of the child in custody disputes.  Tailored to the COVID-19 pandemic, these may include:

  1. The age and physical and mental condition of the child and the age and condition of anyone else living in the child’s home;
  2. The exposure each parent has to the virus given their respective employment, i.e. are they working at home or away from home;
  3. Are both parents practicing adequate social distancing and cleanliness practices to avoid contact with the virus;
  4. Are one or both of the parents and/or the child immuno-compromised;
  5. What are the current custody and visitation arrangements and do they overly expose the parents and/or child to the virus through constant travel and exchanges; and
  6. Are there any specific examples of a parent putting the child’s health at risk through unnecessary exposure or exposure which cannot be avoided due to the parent’s job or routine.

While this list does not include verbatim examples of factors the court may rely upon for determining an emergency, they may be helpful when considering if your current custody and visitation arrangement is safe.  

If after determining that your child’s health and safety may be compromised under the current arrangement, and discussion with the other parent does not help, file a motion to modify visitation and/or custody arrangement.  This is the only method to get before a court during the pandemic and reveals your legitimate concern for your child’s well-being.  If the court doesn’t agree that your situation rises to an emergency speak to an attorney before taking further action, because failing to abide by the terms of the custody arrangement may place you in contempt of court and subject to punishment. 

At the end of the day, the child’s safety is the most important factor driving your conduct and you will likely do what you believe is best.  However, even given the COVID-19 pandemic, the court may disagree with your actions.  What courts tend to look favorably upon is when a parent expresses genuine concern for their child’s safety and attempts to work with the other parent to mitigate those concerns before taking action.  That is to say, a global health crisis is not the time to arbitrarily restrict contact between your child and their other parent.  Work with them to your child’s best interest and, if need be, look to the courts to grant an emergency modification.  In any event, when conflicts arise during this time, talk to a custody and visitation lawyer to find out your options and to ensure you are protected in any future proceedings in court involving your child. 

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