Covid-19 Creates Complications for Court-Ordered Parenting Time

The Covid-19 outbreak has created complications relating to court-ordered parenting time. What does social distancing and a near shut-down of New York State mean for court-ordered parenting time? The answer is complicated. We are in unchartered territory, and like most family law matters, the answer here is nuanced and will ultimately depend on many factors, some of which will be addressed below.

Our office has seen an uptick in custodial parents, who are understandably anxious, calling to ask if they can unilaterally cancel scheduled visits due to concerns for their children contracting Covid-19 while under the care of the other parent. Some custodial parents are also concerned that the non-custodial parent will refuse to return the children at the conclusion of their parenting time due to restrictions on movement. On the flip side, we have also been on the receiving end of dozens of calls from non-custodial parents who are, also quite understandably, feeling as though this outbreak is being used as an excuse to deny them parental access.

Adding to the uncertainty is the fact that the courts in New York are closed, except for few designated emergency matters. And we can expect that, as of Wednesday, March 25, 2020, the Family Court will be closed altogether, except for a single Judge in each county. Attorneys will be appearing on emergency matters via telephone. The general consensus among practitioners in this area seems to be that interference with parenting time is not considered an emergency under current guidelines. Consequently, parents are now left with limited options if they wish to enforce their parenting time. As of now, there is neither an end date for reduced court operations, nor is there an estimate for how long Covid-19 related restrictions on our day-to-day activities will continue.

When concerned clients call our office, we generally advise them that court orders must be adhered to. However, as the best interest of the child is paramount, some of the considerations we do discuss are as follows:

Special Medical Needs of The Child: Whether the child in question is immunocompromised, suffers from asthma, or has any other special needs that create increased risk (coupled with, for example, a non-custodial parent that has recently traveled to a high-risk area)

Travel History of Non-Custodial Parent: Has the non-custodial parent traveled to a high-risk area? It’s important to note that the mere fact that a parent has traveled overseas does not warrant restriction on parental access. You may refer to the guidelines provided here.

Other Family Members in the Household: Have any family members in the non-custodial parent’s household had a positive Covid-19 test? Are there members in the non-custodial parent’s home that have symptoms, but have not yet been tested?

Inter-State Travel: Does parenting time involve inter-state travel? If so, are there any limitations or restrictions on interstate travel that have been, or are expected to be, implemented? The question of whether or not a change in custody would be considered "essential travel" in such an instance, again, is not settled, given the unique situation we are in. One could argue that insomuch as a parent is following a court order that was entered to further the best interest of the child, it is in fact essential. On the other hand, if inter-state travel creates a public health risk, and, presumably, the child would not be in danger by spending additional time with the non-custodial parent, then perhaps such travel is in fact non-essential under the circumstances.

Bear in mind that while the above considerations may warrant delaying a visit, parents should work together in addressing and mitigating any of the above concerns. For example, if a non-custodial parent recently traveled to Europe, parents may agree to modify the non-custodial parent’s access to include daily FaceTime access for fourteen days, followed by regular overnight parenting time along with make-up visits. Likewise, limitations on interstate travel would need to be addressed on a case-by-case basis, with an eye toward protecting the non-custodial parent's parenting time.

Bottom line: circumstances call for cooperation on the part of both parents. Children are facing as much uncertainty as we are---they are displaced from school and can certainly sense the anxiety surrounding them. It is important to provide as much safety and stability for children as possible at this time---this includes the time they spend with each parent. Bad faith conduct, in either denying parental access or refusing to return a child at the conclusion of parenting time will, sooner or later, be addressed by the Court (if it is not addressed by police intervention prior).

With that said, there may be certain instances where parenting time should be reconsidered, and one parent is being unreasonable or uncooperative in reaching a resolution that is in the child’s best interest. Our office is prepared to address any such instances with you. If you are a custodial parent and the non-custodial parent is refusing to return the Child to your custody at the conclusion of their parenting time, you may file a Writ of Habeus Corpus to have the child returned to your custody. Please note that the courts are currently accepting such filings. We are available for telephone and video conference consultations if you have any questions relating to how the Covid-19 outbreak impacts your particular Order of Custody and Visitation, or for more information on filing a Writ of Habeus Corpus. Feel free to call or email to schedule an appointment at: (516) 978-6240 or Amina@RashadLaw.Com