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

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

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 and has left the courts, attorneys, parties, and parents alike without clarity as to how to best proceed with custody and visitation cases. With the courts largely unavailable and the Virginia governor ordering everyone to stay home, close non-essential businesses, many parents have been left wondering what to do in regards to custody and visitation exchanges involving their children. Thus far, there has been little guidance from the courts or the Commonwealth of Virginia. Complicating matters further is the competing executive orders issued by other states’ governors that affect interstate custody arrangements.  And coloring all of this for parents is the initial fear of the invisible that is able to harm their children.

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state of emergency that will remain in effect for the Commonwealth of Virginia until June 10, 2020, unless modified or rescinded by subsequent executive order.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.

On March 30, 2020, Governor Northam issued Executive Order Number Fifty-Five (2020) Temporary Stay At Home Order Due to Novel Coronavirus (COVID-19), ordering 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. Of note, 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 in regards to 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.

We have received numerous emails and phone calls from clients concerned for the health and welfare of their children during this novel virus. 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?

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 generalized apprehension about the susceptibility of a child to contracting the virus is unlikely to be seen by the courts 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.

Though the local courts have largely suspended in-person hearings and trials regarding custody and visitation of children, it should be noted that the courts remain available to hear emergencies. If you as a parent feel that your child or children have actually been exposed to COVID-19 or 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 more unusual circumstances, we would be able to request that 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, without more, 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. Parents should consider whether there is a palpable reason that their child is more likely than the average child to contract this virus and have a reasonable articulable explanation for his or her position that the only way to protect the child is to alter the access schedule. Parents should also step back and consider how they would 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.

What the future holds in regards to a second wave of infection or the creation of a vaccination is unknown. It looks as if this COVID-19 threat is expected to be a long term threat to everyone.  The best decision makers for children are generally the parents.  Parents are presumed to act in the best interests of their children.  But what that is may not be seen the same by both parents.  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, but know that the courts and attorneys will be available to them for their emergency situations.

Effective June 1, 2020, the Commonwealth of Virginia court system will slowly begin reopening.  In Prince William County both the Circuit Court and the Juvenile and Domestic Relations District Courts have expressed their plans to limit the case numbers and thus the number of people in the courthouse as part of Phase 1.  Consideration should be given by all family law clients of alternate dispute alternatives: arbitration, mediation, negotiation.  These alternate methods of conflict resolution will be further developed in a future post.

We at Farrell & Croft, P.C. are here to help you navigate these uncertain times. We continue to work diligently now as always for our clients. We can and will counsel you on whether your facts rise to an emergency level likely to be heard by the court on an emergency basis and 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.


Catherine Croft and Sarah A. Cohen