Even in good times, and times of certainty, co-parenting, custody and visitation can be challenging, and often adversarial.  Excuses are commonly made to refuse custodial time and visitation (I hear them from clients, opposing parties, and even attorneys).  Now in the COVID-19 world, there now appears to be a very strong basis for justifying the refusal of custody and timeshare…But is there really?

In response to Governor Gavin Newsom’s strict shelter-in-place order, people have freely modified their custody and parenting time orders for numerous reasons, e.g., geographic distance between homes, in and out of county; a member of a parent’s household is a first responder or frontline person and both parents agree not to take the risk; a member of a parent’s household is more vulnerable to the virus because of underlying medical conditions, or someone has tested positive for the coronavirus.

Also in response to Governor Newsom’s orders, parents/caretakers are acting unilaterally and violating court orders, making efforts to justify disobeying the Court’s order by claiming it is in their child(ren)’s best interest and leaving the other parent needing the assistance of a Court which is running at limited capacity.  Most courts are essentially closed for all routine matters and are only handling emergencies; some courts are not even prepared to handle emergency matters.

The courts across the San Francisco Bay Area are fairly unified in their position that COVID-19 is not an excuse to unilaterally modify custody or justify withholding children from court-ordered timeshare and visitation.  I have heard from colleagues, as well as my own experience, that the Courts are intolerant of parents who use “The Rona” to prevent parents from exercising their ordered timeshare.  The Courts have stated that COVID-19 is not, of itself, grounds to withhold children from court-ordered visitation, and frankly, doing so may be playing with fire; it may be viewed by the Courts as a reason to reduce or eliminate the “offending parent’s” timeshare.

These times are unprecedented, and there are constant conflicting messages, from the media, the public, the Courts, counsel, etc.  Who do you listen to?  What do you do?  You listen to your attorney (if you have one), and you follow the direction of your order.  A modification of child custody, even on an emergency basis, is always an option, and the Courts are engaging in emergency hearings at this time.

Notwithstanding court orders, parents may voluntarily modify their custody orders, either permanently, or temporarily, by mutual agreement.  The key words being mutual and agreement.  Both parents must agree to the medication, and as an attorney who practices in this area, I would strongly advise these agreements are, at a minimum, memorialized in email format, and even better, by legal Stipulation and Order, protecting both parents’ rights under the modification.

Also, consider, if making a modification to a child custody order,

• how long does the modification need to be in place,
• should there be a self-executing provision, conditional upon the lifting or relaxing of the Shelter-in-Place which changes the agreement again, or returns the agreement to the original agreement,
• are provisions necessary for childcare modifications,
• changes or agreements required to facilitate distance learning. 

There is a myriad of issues to consider, and it is critical that they are outlined, and drafted thoroughly if they are to be effectively enforced.

If you have questions or concerns about a child custody order or informal agreement, we are here to help. Safeguard yourself, and your children, by ensuring your rights as a parent are protected.