This is a question we have never had to answer before and the reality is that because information is changing hour by hour, there is no hard and fast guidance available from the court system or our government leaders. A letter recently sent by the California Lawyers Association to Governor Newsom and the Chief Justice of the California Supreme Court asked for specific guidance to this and several other problems that we are facing.
As this article is being written, this remains a really hard question to answer, especially without very specific information about the infection, such as who was infected and when, how potentially exposed your child was, and when, and how the other parent has handled the problem up to this point.
We already know that COVID-19 is a highly communicative disease and that the virus can live, unseen, on some surfaces for many days. We also know that the virus can be communicated by touching someone or something that has the virus on it, by cough, sneeze and other means. In short, it’s a real risk that is having devastating consequences for some people and their families, so proceed with caution as you make your decisions.
We believe that at the moment, there are very few real options to force one parent or the other to take any specific course of action. It is also highly unlikely that agencies like social services will have the ability to handle the flood of calls from people who think a parent is neglecting a child by not protecting them more from the virus. As the crisis worsens, even the court system won’t be able to quickly make case by case decisions based on the circumstances of your child. If COVID exposure was not an issue, the simple answer would be to follow the custody orders and make common sense agreements with the other parent to work around things like school closures.
However, given the circumstances, this is the time for both parents to really work together to find the best possible solution for the sake of your child and some sacrifices may need to be made by temporarily giving up custodial time. It is also the absolutely worst time for either parent to take unreasonable positions about your kids; I believe that the court, when it’s back up and running, will take a very dim view of any games played with the kids during this crisis. As the court has often said, make decisions that are in the best interests of the children. Prior to coronavirus, the Courts were often lenient with people who played visitation games, but my guess is that they’ll crack the whip, hard, on anyone caught playing games with the kids during this crisis.
Now, back to the original question. I think that the answer is that it truly depends on the very specific circumstances of your child.
Some of the analysis might include considering the very real possibility that your child has had contact with an infected person and if so, the likelihood that they have contracted COVID-19, even if they are asymptomatic (without symptoms) as many young people are. If the answer is that it is highly likely that they have had considerable exposure, then it may be best to let them quarantine in place until they are no longer potentially infectious. What that will mean for many parents is that the children will stay with the other parent for a little while longer. Part of this analysis also has to be whether or not your children, after a custodial exchange, will then potentially expose you and other people who may spread the virus, become sick or even die. If there is any good news is all of this, children are statistically far less likely to experience the negative effects of COVID exposure themselves.
Because we are making hard decisions for the best interest of our children, in some cases, the best course of action maybe to leave the child with the other parent until the quarantine period is over, even though that royally stinks. The same is true if someone in your family is suspected of contracting coronavirus – in that case, perhaps having your child outside your house is in their best interest, that is of course, if it is safe to do so. Same analysis, only in the opposite direction.
Another question that has not been answered, but which probably has a very similar analysis is whether it would be reasonable for the parent in quarantine to decline to exchange the child as mandated by a court ordered custody / visitation agreement. The thought process is that by releasing a knowingly exposed child, the parent is taking some action that could potentially infect and harm others by and through their child.
These are really difficult questions and ones that I wish we did not have to make. Currently, there is no clear guidance, so you are going to have to do the risk assessment yourselves. Please remember, however, that a court may be asked to evaluate your decisions at a later date, much like being a Monday morning quarterback, and if the court finds that your decision was unreasonable under the circumstances, you might pay a steep price for the decision that you made. Choose wisely and may God bless your family with health and safety.
We have been helping our clients with their family law problems for more than 20 years. If you would like to talk about your specific problem, please give us a call. We’re here to help.