Custody Exchanges During the Quarantine?

Even under the most favorable circumstances there can be friction between a mom and a dad over custody exchanges.  Dad is late for pick-up, mom is early for a pick-up, mom doesn’t want to allow dad’s girlfriend to be at the exchange, etc.  These are common issues that inflame custody exchanges.  Add a quarantine because of the COVID-19 virus and you have conflict.

Social Distancing and Custody Exchanges

Right now, with the threat of the Coronavirus spreading, states have been rapidly applying rules regarding self-distancing and limiting contact between people.  Governor Sisolak and medical experts are requesting people to stay home.  Nevada has closed schools, restaurants, casinos and requested people to not gather in groups.  Social distancing has become the new buzz word.

Some parents are interpreting “social distancing” to mean child exchanges should not take place.  Does a directive from our governor, give a parent the authority to stop child exchanges?  The simple answer is no, it doesn’t.   But it does give rise to the debate of a parent’s authority to stop custody exchanges.

Best Interests Versus Court Orders

Nearly everyone has been advised to stay at home, and to do so with their children. In some cases, a parent reads this to mean no more custodial exchanges.  When one parents interprets the governor’s directive to stop custody exchanges you have a debate between what is in the best interest of the child and the  authority of a court order.

The custody order sets the days and times that each parent has physical custody of the child.   The order details an exchange time.   The custody order is law, at least the law that exists between this mom and dad.   Not following the order is considered contempt and is punishable.   The judge can sanction a parent for ignoring a custody order.  Sanctions typically consist of attorney fees or extra time with the child. In extreme cases the judge can imprison a parent for not following the custody order.

That being said, a parent does have the ability to disobey a custody order.   A parent always has the authority to use common sense and to not follow a custody order if the best interests of the child are not being met.  For example, you would never give your child to the other parent if you know the parent is intoxicated and driving.   Even though the court order states this is their time, you should not go through with the exchange.  A judge would not hold a parent in contempt for not allowing the child to get in the car with an intoxicated driver.  A child’s safety or best interest trumps the court order.

The best interests of the child is always more important than a court order.  Court orders are meant to be the standard order, during standard times.  Having one parent drive up intoxicated is not standard.

Family Courts issue orders to allow the child to experience custody time with both parents.  Some court orders allow for joint physical custody and some for primary physical custody.  Either way, there is going to be an exchange.   The judge has issued a black and white order, and at the same time the judge is expecting both parents to behave and act in a way that is in the best interests of the child.   A parent should never follow a court order so rigidly that following it would be detrimental to the child.

Is a custody exchange, during the quarantine, detrimental to the child?  Probably not, if you are talking about a normal weekly exchange and the other parent is living in Las Vegas.  Until the governor issues a “stay at home” order, these type of custody exchanges should continue.

Now, a custody exchange where the parent is in another state and the child would need to fly, is a different scenario.   There, the child is possibly being unnecessarily exposed to the virus.  The CDC has issued directives for all of us to limit commercial travel.  Choosing not to put the child on a plane for spring break would be a good decision.

A custody exchange where the other parent is experiencing virus symptoms would be another good decision to withhold custody. Limiting a child’s exposure to the virus is choosing the best interests of the child over the court order.

Enforcing Court Orders When the Court is Closed

Visitation and custody orders include specific days and times during which each parent is entitled to custodial time with their children. When a parent is refusing to follow this order, a motion must be filed in court.  A motion is a request.  You are requesting the court to enforce the order and to hold the other parent and in contempt.   The judge holds a hearing and if enough evidence is provided the parent can be held in contempt.

Currently, there are some issues with filing motions for contempt.  First, to find contempt the judge must find “willful” disobedience. Refusing a custody exchange because of a restriction by a governor might not be considered “willful”.    The facts of each case will vary whether willful disobedience is found.

Second, our family courts are essentially closed until further notice.  Motions can be filed, but there may not be a hearing.   The court has the authority to dismiss the motion, make a decision without holding a hearing, or continue the hearing until the virus restrictions are released.   Currently, a motion to enforce the custody order may not be heard.

Don’t worry, after the virus restrictions are over the court will hear all motions.  And, don’t worry if you lost custody time during the restrictions.  The court will likely award the parent who lost custody time extra makeup time with the children.

In circumstances like these, decisions should be made with an “abundance of caution,” rather than an abundance of assumption.  While the court may hold a parent in contempt, they are hoping parents will be reasonable and use common sense during these precarious times.

Try to think about what is best for the child.  Don’t be unreasonable just to be unreasonable.   And if the situation is not resolving itself, call Right Lawyers.  In situations like these, it is best to get advice from a good divorce and custody lawyer, because each answer could change on the smallest of differences in facts.