Custody During Covid

Custody During Covid

I would like to thank the Honorable Retired Judge Scott M. Gordon, Sonia Dujan, Minor’s Counsel, and Lisa Hacker, MFT, for ideas relating to this blog on how to manage custodial conflict during Covid. 

Many parents are desperate to file ex parte (emergency) motions to get into court because they have not been able to exercise the same parenting plan as before Covid.  Remember, ex parte relief will only be granted because of one of the following reasons: immediate harm to the child (i.e. abduction, deathly health risk), domestic violence, or sexual abuse.  (Fam. Code 3064). If you want a change in custody because the other parent is violating pre-Covid orders, it won’t happen at an ex parte hearing.  An order modifying child custody requires a lengthy hearing, and the likelihood of getting such a hearing right away is slim to none. 

Remember, courts want to give custody to the parent who is more likely to ensure FREQUENT AND CONTINUING CONTACT WITH BOTH PARENTS.  Using Covid as a reason to frustrate the other parent’s time with the child can backfire. 

If there are real concerns about continuing the pre-Covid custody orders, parents should consider interim orders during the “safer at home” period.  Perhaps think of making orders in three stages: “BC” (before Covid), “DC” (during Covid), “AC” (after Covid).  Link the DC time frame of these orders with some other public policy, such as the mayor’s orders or the governor’s orders. 

“I am concerned about the other parent’s significant other and their household” is a frequent client comment.  How can you overcome that fear?  Talk with the other parent.  What PPE do they use?  Are they practicing social or physical distancing?  Can you make an agreement as to who the child can be in contact with?  Can you reduce the number of exchanges of the child?  Can you each speak with your child’s pediatrician about specific risks?  Can you nest (child stays in one home, parents travel in and out during custodial periods)?  What is your “no gathering” policy—are you both restricting access to people who live outside your home?  Can you agree to a specific exception for a special event? 

The court wants to minimize harm from disruption in the parenting plan.  Children need: STABILITY, CONTINUITY, AND CERTAINTY.  But we must weigh that against REAL AND SPECIFIC concerns that are DETRIMENTAL to the child or household.  Many clients have called with health concerns for exposing their aging parents whom they live with to their child who goes back and forth between two households, concern for the other parent’s exposure as a healthcare worker, or for interstate travel to enforce move-away orders. 

If the current parenting plan is detrimental to the child’s well-being, then be prepared to show why your proposal is in the best interests of the child or why there is a change in circumstance from when prior orders were issued.  Your RFO (Request for Orders) should ideally include: 

  1.  A declaration from a physician (don’t ask the physician to choose a household, but rather to discuss health risks to child or household) 

  1. A declaration from a mental health professional 

  1. Texts, emails, communication records showing a refusal to comply or why compliance is being rejected 

  1. Specific proposals.  Judges have less time than ever before (there have been 32,000 family law cases re-set due to Covid) to meaningfully resolve your child custody issues.  What will the new schedule be? Can you reduce the number of exchanges?  What will the logistics be for the exchanges? What precautions must each parent take? 

LESS IS MORE.  Make your RFO concise.  Judges don’t have time to wade through dozens of exhibits and pages of narrative.  If you request an Evidentiary hearing, be aware it is likely to be delayed even longer than an RFO, so try to work things out with the other party before resorting to the Courts. 

Develop a team approach to solve disputes.  Get everyone on the call or Zoom and be innovative.  Don’t be afraid to think outside the box. 

Custody evaluations take a long time so they may not the best option right now – it may take up to a year until a judge hears the evaluator’s testimony.  Instead, stipulate to Minor’s Counsel.  Speak with a mental health professional and have that professional discuss the situation with Minor’s Counsel. 

CONSIDER VIRTUAL VISITATION tailored to the child’s age and maturity.   Young children probably need shorter visits that occur more frequently.  Does your child have special needs, such as attention deficit disorder?  Do you have a teen who would rather be talking to friends? Generally, children don’t like to just talk on the phone without purpose.  Plan on making a game of it, really engaging them.  Can you play charades, Pictionary, Scrabble or chess?  Can you read a book to your toddler? 

TO FACILITATE VIRTUAL VISITATION:

  1. The custodial parent should only be present to assist with the set-up of the call.  Then leave the child alone and in a private space with the non-custodial parent for the virtual visit. 

  1. Remove all distractions for the child.  No other children or persons walking in and out of the room, no video games, no TV shows, and so forth. 

If you have a Supervised Visitation order, this can also be done through a Virtual Visitation.  See if a therapist can monitor the interaction between the child and non-custodial parent. 

If your child is expressing fear about visiting one parent or going back and forth, examine where the child’s fear comes from.  More likely than not, it is coming from one of the child’s parents and their questions and comments about Covid. 

Economic hardships are real and they lead to emotional stress.  If you are really struggling emotionally, seek a mental health professional.  If your child is regressing, exhibiting extra clingy behavior or harming or threatening to harm him or herself, also seek the advice of a mental health professional for him/her. 

If you need help navigating your custody and parenting plan because of Covid, please contact our Team at Kraft Miles, ALC. 

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