COVID-19, Custody, Visitation, and the Uncertainty of the Court System

Catherine Croft

The COVID-19 pandemic is an unprecedented phenomenon that has left the world floundering. The uncertainty of these times has spread into every aspect of our lives. Everyday activities such as going to work and school, which we once took for granted, are now not so certain.  Schedules have been disrupted.  Ways of learning, teaching, and working have had to adapt to the new reality.

The uncertainty and caution required to deal with the virus has carried into the legal system. This has left the courts, attorneys, parties, and parents without clarity how to best proceed with custody and visitation cases. The courts are largely unavailable. The Virginia governor ordered everyone to stay home and close non-essential businesses.

Many parents are left wondering what to do about custody and visitation exchanges involving their children. Thus far, there has been little guidance from the courts or the Commonwealth of Virginia. Competing executive orders issued by other states’ governors affect interstate custody arrangements.  And coloring all of this for parents is the fear of the invisible that is able to harm their children.

Emergency Orders

On March 12, 2020, Governor Northam issued Executive Order Number Fifty-One (2020) Declaration of a State of Emergency Due to Novel Coronavirus COVID-19. The governor’s Order declared a state of emergency that will remain in effect for the Commonwealth of Virginia until June 10, 2020, unless modified or rescinded by subsequent executive order. In response to the governor’s Order, the Supreme Court of Virginia entered an Order Declaring Judicial Emergency in Response to COVID-19 Emergency on March 16, 2020. Through this Order, the Court tolled all statutory deadlines and continued all non-essential, non-emergency cases in all of Virginia’s circuit and district courts. For the most part, pending divorce, custody, and visitation cases were continued generally.

Stay at Home Orders

On March 30, 2020, Governor Northam issued Executive Order Number Fifty-Five (2020) Temporary Stay At Home Order Due to Novel Coronavirus (COVID-19). This orders all Virginia residents to limit gatherings and to temporarily stay at home as much as possible. Exceptions were made in order to allow residents to leave their homes under limited circumstances. Such circumstances include travel for food, necessities, medical attention, and the like. The Order specifically allowed for travel “required by court order or to facilitate child custody, visitation, or child care.”

Since its initial declaration of a judicial emergency and the governor’s issuance of the Stay at Home Order, the Supreme Court of Virginia has extended and clarified its March 16 Order numerous times. However, little guidance has been provided by any of these Orders regarding how the current state of emergency is to affect existing custody and visitation arrangements. Though the governor’s order allows for travel for custody and visitation, it does not specifically mandate it. As such, parents worried about the health and safety of their children have been left debating whether they are required to send their children for regularly scheduled visitation with the other parent.

Client Questions on the Health and Welfare of their Children

We have received many emails and phone calls from clients concerned for the health and welfare of their children. The tenor of the inquiries is:

  1. If this virus is so easily transmittable and contagious, should we really be sending our children back and forth between our home and the other parent’s home? And
  2. As parents, do we not have the right to determine what we feel is in the best interest of our children?

Current Court Orders

As things currently stand, the law remains on that point remains the same: current court orders need to be honored. They should be followed now in the same manner as they have been followed in the past. Reasonable apprehension about the susceptibility of a child to the virus is unlikely to be seen as an acceptable reason to withhold the child from their other parent. Failure to abide by a court order could result in Rules to Show Cause, sanctions, and other unintended consequences for the violating parent. Personal facts and situation may impact a finding or not of contempt, but remember the trier of fact is non-emotional and unbiased.  So the judge, trier of fact, may not see the facts the same way that the parents do.

Courts Remain Available to Hear Emergencies

The local courts have largely suspended in-person hearings and trials regarding custody and visitation of children. However, the courts remain available to hear emergencies. Do you feel that your child or children have actually been exposed to COVID-19? Do you feel they have a higher risk of exposure or susceptibility to the virus, for whatever reason? This is something for us to discuss with you in the context of potential emergency relief. In these circumstances, we could request an emergency hearing be docketed with the appropriate court to protect the safety and well-being of the child.  The underlying facts would need to be specific to this child or children, and articulable and reasonable.  The generalized fear of the virus would not likely be seen as an emergency.

It’s important that parents take a step back and evaluate the situation from a neutral perspective. Is there a palpable reason that their child is more likely than the average child to contract this virus? Is there a reasonable articulable explanation for their position that the only way to protect the child is to alter the access schedule? How would you feel if the roles were reversed and the other parent was attempting to keep their child away from him or her for this same reason?

Looking Ahead

What the future holds in regards to a second wave of infection or the creation of a vaccination is unknown. This COVID-19 threat is expected to be a long term threat to everyone.  The best decision makers for children are generally the parents.  We presume that parents act in the best interests of their children. But both parents may not see that best interests in the same way.

Extraordinary times require extraordinary consideration and improved communication between the parents. It is worth the conversation to work through an alternate plan collaboratively. And to have that conversation now rather than later.  The available options will be specific to each individual case. If parents are not on good terms with one another, it will likely make negotiating a new arrangement difficult without the input of the courts, counsel or a mediator. If flexibility by the parents is not an option, parents should plan to follow their existing orders. Know, however, that the courts and attorneys will be available to them for their emergency situations.

Reopening the Court System

Effective June 1, 2020, the Commonwealth of Virginia court system will slowly begin reopening.  In Prince William County, the courts Courts plan to limit the case numbers and the number of people in the courthouse as part of Phase 1.  All family law clients should consider alternate dispute alternatives: arbitration, mediation, negotiation.

Farrell & Croft, P.C. is here to help you navigate these uncertain times. We continue to work diligently for our clients. We will counsel you whether your facts rise to a level likely to be heard by the court on an emergency basis. Our firm will navigate you through your issue in the current landscape.

One last thought.  This too shall pass.  The memories your children have from these times will be long lasting.  Make the memories that are best for them.


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