After divorcing, children commonly travel between each parent’s home based on a parenting plan and time-sharing schedule ordered by the court. In these uncertain times and as we all face the impact of the novel coronavirus, many questions regarding child custody and time-sharing have been raised. The most common questions fall in line as follows:
- What happens if one parent, or a member of one parent’s household, becomes infected with the novel coronavirus?
- Should the non-infected parent stop the time-sharing of a parent if that parent becomes infected?
- Another area of confusion regarding time-sharing during this pandemic will be; may a parent unilaterally terminate the time-sharing of another parent when a parent or household member lives in a community with an outbreak, or if the other parent or member of their household has come into contact with an infected person, but are asymptomatic with no physical evidence of actual infection?
- How will forced quarantine or self-isolation potentially affect court-ordered time-sharing?
Unfortunately, the answers to these questions are not clear, as the State of Florida and the United States have not faced a pandemic situation in over one half of a century. However, all family law and child custody lawyers understand that when a parent fails to comply with court-ordered time-sharing with the minor child, that there is always a risk of a contempt action filed against a parent that disregards the court order. Balancing out a parent’s risk of facing contempt and weighing the risk of exposure and transmission of the coronavirus as the virus continues to spread will be problematic.
Real and Certain Risks May Matter More Than Mere Speculation?
The first issue to discuss in this analysis, is there a real risk that constitutes a basis or desire to limit time-sharing or to even stop timesharing during this pandemic? Are the facts being relied on actual scientific facts, such as a positive diagnosis, a declaration made by the State or Federal government placing an area on restricted travel and/or quarantine. Historically, in our legal experience, Courts are not receptive to mere unsupported allegations with parties who appear to be manipulating facts or a crisis for there own self-gain or posturing. However, if based on the facts, all Florida courts are to consider the best interest of the child and whether the contempt is willful.
The more attenuated the fear of transmission, the more difficult it will be to justify breaking child custody court orders and parenting plans. It will be critical to stay current on the changing travel advisories and outbreak areas. Several months ago a trip to Wuhan China may have raised concerns; last month a trip to Italy, and now in these last few weeks a trip to Seattle, New York or the San Francisco Bay Area would be ill-advised. However, if the virus continues to spread and has saturated the nation, there may be no valid concern regarding travel where all areas are just as susceptible to contracting the coronavirus.
As the virus continues to spread another real and articulable concern may be the parent’s dismissive attitude toward potential exposure or the child’s potential exposure. A parent’s willingness to take preventative measures and follow government instructions may become just as important as the actual travel to carry out the time-sharing. Another real issue may be a parent’s refusal to enforce social distancing on the child during their time sharing. A parent that responds to another parent’s concern regarding the virus with a hostile or dismissive text, may see that text introduced into evidence against them in a custody proceeding, or in defense of a potential contempt motion. Parent’s facing complex issues that affect the health and well being of the child and the potential health and well being of both households ideally would cooperate and take on a unified front to protect their child and each other from the coronavirus.
To date, The Florida Supreme Court has not ordered the closure of our court system or suspended family law hearings. In the event you are facing a parenting issue regarding the coronavirus, you may proactively raise the issue before the court before engaging in activity that could expose you to the risk of choosing between your child’s safety and the risk of contempt.
At the end of the day, parents considering a restriction on the other parent’s court-ordered parenting time must start with evidence that demonstrates the risk of transmission posed by the parenting schedule. In its simplest form, this may be evidence that the other parent or a household member has contracted the virus. If a parent has persuasive evidence that parenting time creates a measurable risk of transmission – or, as further explored below, may expose the child to containment measures – that parent should bring those concerns to the attention of a judge as soon as possible.
The Best Interest of Your Children Is Often best Served When You Cooperate
We implore our clients and other parents facing these issues to always make the best interest of your children your top priority and to work together to take all reasonable precautions. If parents can agree on alternatives or temporary suspension of timesharing, written agreements for makeup time-sharing are always available along with electronic and video communication. If you need any legal assistance regarding child custody issues, the attorneys of The Virga Law Firm are always here to help assist you.
Call The Virga Law Firm, P.A. at (800) 822-5170 or contact us online today for an initial consultation about your case.