Many questions have arisen in the context of custody since the outbreak of the Coronavirus. The most recent and more complex question to be answered is whether, during statewide and nationwide emergency declarations, custody exchanges must proceed in accordance with an existing custody order. Like many legal questions, the answer is not 100% clear. There are many considerations which must be weighed in determining whether custody exchanges should be suspended and when. Moreover, consideration must be given to the mechanism by which exchanges occur if you are continuing with custody exchanges during this period of time. Below are some of the considerations client and counsel should weigh in determining whether to proceed or suspend custody exchanges in today’s emergency climate.
1) Has law enforcement or the government issued a directive disallowing the conduct necessary to effectuate the exchange of the children? Some states have issued a statewide shelter in place directive. At the time time this was written, Pennsylvania had not issued a directive covering the entire state; however, a “stay at home” directive had been issued for approximately seven counties, including most urban and suburban counties. It is likely that many other states will follow, and perhaps Pennsylvania will remain county-by-county. The directives issued generally permit essential obligations to proceed. Most would argue that compliance with a custody order is an essential obligation. In fact, Pennsylvania has clarified its initial directive, specifically deeming compliance with a court order as essential. If, however, further directive comes that precludes custody exchanges, then that directive must be followed. What happens if that arises when the non-custodial parent has the children? Even in that circumstance, the law enforcement directive must be followed. Parties may reach out to law enforcement during this period to seek assistance in custody exchanges and clarification, although it is likely that law enforcement will not want to be involved, given the more pressing issues surrounding the emergency.
2) Are you or the other parent showing symptoms? If so, it makes sense that the children should not be with that parent. Per the Center for Disease Control, symptoms include dry cough and fever. The issue is that how will you know? You should communicate with the other parent to ask about the showing of symptoms and to also acknowledge if you are symptomatic. In this instance, it is unlikely that the court would find the withholding of custody from the symptomatic parent to be problematic. Similar consideration should be given to other members of each parent’s household.
3) Are the children showing symptoms? If the children are showing symptoms of COVID-19, it makes sense that they not be exchanged and be quarantined. To permit exchanges potentially permits the virus to be spread. Some parents will say – they can be sick at my house just like they are sick at your house. Courts are generally not persuaded by that argument. It is more unlikely to be a viable argument given the contagiousness of this virus. You should, however, be aware that the other parent may make this argument and some courts may agree, but likely not. One way to protect yourself if you are withholding because the children are showing symptoms is to document those symptoms. At a minimum, you should call the children’s pediatrician and ask about treatment. Then, you should determine your next steps based upon that advice. By calling, you will have objective evidence that you were concerned and that the children were showing symptoms.
4) Is anyone under self-quarantine? If you, the other parent, a member of a parent’s household or the children are under mandatory self-quarantine because of contact with a person who tested positive for the Coronavirus or due to travel, then the court would likely find that withholding the children from the self-quarantined parent or parent who does not have the children is appropriate under the circumstances. Again, any documentation of the self-quarantine is helpful should the other parent file a petition with the court due to non-compliance.
5) Is a parent continuing to work during the emergency and what is the nature of the parent’s work? In Pennsylvania, the State has issued an emergency order requiring all businesses to close unless the business is a “life sustaining” business. The State has taken the extra step by outlining those businesses which are or are not “life sustaining” businesses. These businesses include, but are not limited to, medical professionals, grocery store employees, restaurant employees (for take out only), and gas station employees. If one parent is in the medical field, then consideration should be given to suspending visits while the emergency exists. This protects the children from possible secondary exposure when the parent returns from work. The other professions likely have less exposure, especially if the employers are following guidelines relative to disinfecting and social distancing. Consideration must be given relative to the nature of contact the parent experiences in his or her work environment when determining whether custody exchanges should continue. In addition, if the work environment has known positives for the virus or employees who are isolating due to the presence of symptoms, this certainly makes more of a case for suspending exchanges.
6) Has a parent or the children traveled to a region that has been particularly hard hit? While this is a factor to be considered, it alone is likely insufficient to withhold custody. Rather, it should be considered in conjunction with the above factors. It is likely that the positive cases will continue to climb exponentially given the current lack of available of testing. In light of this, it would not be wise to use this factor as determinative regarding custody exchanges and whether they should continue.
In short, you should follow your custody order provided (a) neither you, the other parent, a member of a parent’s household, or the children show any symptoms, (b) neither you, the other parent, a member of a parent’s household, or the children have been exposed and are required to self-quarantine, (c) law enforcement has not issued a directive which specifically would subject you to sanctions or penalties for completing the exchange, or (d) other significant circumstances exist such as those noted above. In relation to significant circumstances, you should be aware that your decision not to continue custody exchanges may lead to the other party filing for contempt against you, which obviously would not be heard until courts re-open.
Some courts are hearing custody emergencies but it is not clear that the court would determine the failure to exchange custody as an emergency, especially given the other issues a court must address on an emergency basis during this unprecedented crisis. A few courts have even defined emergencies with custody being notably absent from that definition, while other courts simply state that custody emergencies will be heard. It is worth noting that esteemed family law organizations, such as the American Academy of Matrimonial Lawyers and the Association of Family and Conciliation Court, and members of those organizations, have sent out guidance that custody orders should be followed. However, this guidance was issued prior to many of the emergency declarations which have been issued, including California’s shelter in place directive, so that must be considered as well.
Should you find yourself facing the prospect of contempt, courts in Pennsylvania have the authority to issues sanctions upon a finding of contempt. Preliminarily, a finding of contempt requires that you or the other parent “willfully” violated an existing court order. The issue that will need to be developed is whether the conduct in withholding the children was “willful” given the state of the emergency. This gets us back to the factors noted above. If the court deems the withholding of custody to be willful, then the court has numerous options for sanctions against the parent who withheld. Those sanctions include imprisonment for up to 6 months (although this sanction is rare and requires the court to enter an order outlining what the person needs to do to be released from prison), a fine of up to $500, payment of counsel fees, costs and expenses, and perhaps ordering make-up time (although there is controversy as to whether a court could do this on a contempt petition alone as the court cannot generally modify the underlying custody order in a contempt proceeding and a separate petition to modify should be filed to request the make-up time).
You might ask – what if the other parent will not follow the custody order? In some counties, you can file an emergency petition as noted above, although it is not clear whether the court will determine the petition to be an emergency. Some counties have specifically outlined what constitutes an emergency in these trying times. You should contact your attorney to discuss whether this is an option for you based upon where you reside. Another option is to involve law enforcement. This is not advised except as a last option. You should have a copy of your custody order to provide to law enforcement and to determine if they will assist in the exchange. Given the other emergencies with which they are dealing, you should be prepared that they will not assist, as they generally would not assist in implementing a custody order prior to the COVID-19 outbreak.
If a parent’s custody time is suspended by agreement or by unilateral action, it is likely that the parent who lost time will be granted make-up time when the emergency subsides. This should be considered when weighing the factors above because the parent who must remain at home with the children certainly has a different quality of time than does the parent who later can travel with the children. You should assume that the amount of days or hours missed will be the amount to be made up, although each court will address this on a case-by-case basis.
If time is suspended, then children should be in contact with the parent who does not have custody by other means. In today’s world, there are many methods by which parents can communicate with children. In addition to telephone contact, parents should consider the use of Facetime, Skype, Zoom or other similar platforms. While this is not a substitute for in person contact, it does permit some contact with the children while custody may be suspended. If you are withholding without consent of the other parent, then you absolutely should offer this type of contact.
If you are proceeding with custody exchanges, then you should take steps necessary to protect you, the other parent and the children. This includes following all CDC guidelines. Use of hand sanitizer, alcohol wipes, and gloves (even if not medical gloves but just regular winter gloves) should be considered during and after exchanges. In addition, regular hand-washing is essential not only for you, but also for the children.
The situation is evolving minute-by-minute. Should you have questions, reach out to your counsel for advice.
This article provides general information and should not be construed as legal advice. Always consult legal counsel before making decisions.
