COVID, Face Masks, and Parental Custody Rights
COVID, Face Masks, and Parental Custody Rights

Covid19 is making itself present in family law disputes. Family law judges historically have been reluctant to interfere in parental differences regarding Covid19 and masks, except where health concerns are at issue. However, more and more judges are venturing into uncharted territory because they feel they must. Judges are making rulings regarding masks and exposure to the virus in general.

Not all parents feel the same way about masking up in the face of Covid19. This is especially true in divorcing and divorced family units, where parents may have wildly differing views regarding the disease and whether to wear a mask. Add school closures, first-responder parents, unsafe travel, political upheaval, and cabin fever to the mix, and it is no wonder that parents are anxious about their children.

Co-parenting can be a bumpy ride in the best of situations. What can a parent do when a co-parent is unwilling to put a mask on a child, when a co-parent refuses to wear a mask themselves, when a parent is sick, or when they differ regarding the question of safety for their child? This is a question that is increasingly before judges in all states. Family court judges are increasingly stepping into previously uncharted territory. Few custody and child-support court orders have provisions covering how to share parenting in case of a pandemic.

How Covid19 is Coming Up in Family Law Matters

Judges have prohibited parents who do not wear masks from seeing their asthmatic children.

Recently in Florida, an emergency room doctor was stripped of the custody of her 4-year-old daughter.

In another Florida case, a dermatologist had to fight for visitation with his son.

Transferring children between households can expose them to an unnecessary risk of contracting the virus. This is especially true if the parents do not live in the same area and air travel must be used. However, parents cannot unilaterally change their visitation and custody orders. A court must do that.

Courts Must Balance Competing Interests

Family law judges balance competing interests. Parents have rights concerning custody and visitation that must be balanced against the best interests of the child. Family law judges are seeing increased conflict between parents with differing views regarding the safety of their children.  

If a judge feels that the child’s health or safety is being compromised by a parent’s actions, the court is likely going to take steps to protect the child’s health and safety. This is especially true if the child involved has an underlying health issue such as asthma. That may affect a parent’s visitation or custody rights for the duration of the pandemic.

Messy divorces usually mean messy custodies. This is made much more complicated by Covid19 as children become an unexpected flashpoint. One parent posting and boasting on Facebook or Twitter of maskless forays into crowded areas of possible contagion can be used by a parent or judge to temporarily change custody or visitation if the court believes that a child may be in danger.

Parents Perceive Danger Differently

When a parent fears for their child in the other parent’s home, their first instinct will be to isolate the child from the other parent and then to ask the court for an order to enforce safety. One parent sees the pandemic as life-threatening, the other is more casual. The result is conflict.

Parents Should Try to Work it Out if Possible

Courts always want parents to work out a dispute if possible before resorting to a court hearing. To that end, a court is likely going to want both parents to have engaged in a serious effort to resolve the dispute. Communication is key. Parents should communicate and keep a record of all attempts at resolving the dispute.

If possible, parents should come up with a joint plan for how to handle Covid19 issues and disputes. The plan should be put together before a crisis occurs. If they are unable to formulate a plan, the court will look to the parenting plan and custody orders that are in place first. This includes any orders that allow a parent to make medical decisions for their child. If your Settlement Agreement or other orders mandates that you use mediation before requesting a court hearing, you may have to do so. 

Mediation can also be helpful in crafting short-term modifications. Alternatives to in-person visits can include postponing visits until it is safe, using Zoom or another video conferencing platform for daily visits, or daily telephone calls or text messages to keep in contact.

What to Do in an Emergency?

If the case is a true emergency, such as infection in one of the households, or continued exposure to the virus, request an emergency hearing. But parents need to understand that a court may take days or weeks to resolve the issue. Additionally, when parents turn a matter over to the courts to resolve, they must abide by that court’s ruling.

It is important for parents to understand that many courts will not change existing custody or visitation orders absent a strong factual showing of imminent danger or severe detriment to the child. This usually means that the child has an underlying condition such as asthma, a cardiac issue, is immune-suppressed, or has another serious condition.

If the court steps in, the order will be temporary. However, as weeks turn into months with no end in sight, even a temporary order curtailing in-person visitation can be difficult. Parents should seek to find common ground. That gives them great control and flexibility. In the interim, parents need to know that while a parent might loudly proclaim their right to be maskless on Facebook, a court may take away their right to physical visits or custody until the pandemic is over.

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