How to Handle Child Custody and Visitation During the COVID-19 Pandemic

As people are being asked to stay home and limit exposure to others during the COVID-19 pandemic, we have been receiving important questions from divorced parents feeling conflicted about how to adhere to these guidelines and stay healthy when their children are supposed to be dividing time between two households.

To help ease these concerns, we have put together the following guide about child custody during the COVID-19 pandemic:

How does Washington’s “Stay Home” order affect child custody for divorced parents?

Whenever possible, co-parents should always try to stick to their parenting plans and court-mandated visitation, including during a pandemic. However, this can be tricky, given that Washingtonians have been given orders to shelter in place and should only leave their homes for essential activities.

The court orders you have been issued regarding your divorce case still stand unless you and your ex mutually agree to temporarily deviate from your parenting arrangement. If you do decide to make a temporary deviation from your parenting plan to accommodate the need to comply with COVID safety measures, make sure you capture the terms of your agreement in writing, even if it is in an email exchange.

While your written agreement can be relatively short and straightforward, it is important that it be as specific as possible. Some key information to capture includes:

• Why you are both agreeing to a deviation (even if it seems obvious).
• How long you will follow the new agreement before returning to the original parenting plan (or when you will revisit that issue).
• What specific changes you are agreeing to, and, if you are arranging for makeup residential time, include the dates.

It advisable to include a provision that the deviation is temporary and should not be used as a basis to modify the parenting plan down the road.

It is also important to think creatively at this time. For example, if co-parents decide they will use Facetime or Skype to visit with their kids instead of exchanging custody in-person, then be sure to document when calls will be made, who will place the calls, and how long this method of communication will last. Other creative ways that the children can keep in touch with the other parent are text messaging, playing online video games together, reading over video chat, and other methods of communication that don’t require in-person meetings.

What if we are not divorced yet?

For couples that are in the middle of their divorce, the same issues and concerns apply to your temporary custody orders. While temporary orders can also be deviated from by written agreement, it is important to speak with your lawyer about the pros and cons of formally capturing any agreements in a stipulation or updated agreed order. If you don’t have orders in place, talk to your divorce lawyer about this right away.

What if I don’t feel that my child’s other parent is taking the Coronavirus outbreak seriously enough?

Many parents have concerns about what happens to their child when they are with their other parent. Are they being taken out of the home? Are they practicing social distancing? Are they being exposed to other children or adults? Are cleanliness and sanitation protocols being followed?

If you have evidence that your child is being unnecessarily exposed to risk, or that following your court-mandated parenting plan exposes members of your family who are higher at risk from COVID-19, there are some things you can do.

It is always important to express your concerns, as specifically as possible and in writing, to your former spouse. If your former spouse and you have a history of miscommunication or heated litigation, it would be wise to contact your attorney and have him/her draft a formal letter on your behalf. This will be important for not only showing your attempt to start a dialogue, but it can also be instrumental if either party starts a court action.

Many parenting plans require parties to attempt to work out their disagreements through mediation before filing a court action. If this applies to your situation, there are many mediators and arbitrators who are offering expedited and completely virtual mediation sessions.

If you feel your concerns for your child’s health, safety, or welfare are emergent, you may need to seek an emergency court order. If you think you may need an emergency court order, or you are considering deviating from your current parenting plan without agreement from your former partner, then it is vital that you seek legal counsel right away. Because all courts across Washington State are under emergency local rules and operating procedures, and because there may be severe potential consequences if court orders are not followed, it is important that an attorney walks you through your legal options so you can make an informed decision.

Can I refuse to send my child to the other parent’s home?

Violating any court order can have serious short-term and long-term financial and legal consequences, including being found in contempt of court. Because every family law situation is different, the potential consequences will likely be very case specific. A legal professional can discuss your options with you.

What should co-parents do right now to make this safer and easier?

To avoid legal disputes and support their children during this challenging time, co-parents should be patient with one another and increase communication.

• Discuss how you want to explain the ongoing situation to your children.
• Reach an agreement on what steps you will take to make sure your children are protected from exposure and aren’t potentially exposing others.
• Discuss how you will maintain your child’s education via homeschool or other educational activities, as well as other routines and rules regarding screen time, physical activity, etc.
• Be honest about whether either parent or any children have been exposed to people with suspected or confirmed diagnosis of COVID-19.
• Talk to each other about what will need to happen if either parent or a child gets sick.

Additionally, this pandemic may result in economic hardship for one or both parents, in which case, adjustments and flexibility will be necessary for matters like child support and spousal support. If this does occur, it is important that each be accommodating of the challenges the other is facing and do what they can to lessen the burden whenever possible.

Your family attorney is your best resource at this time.

We understand that parenting disputes will continue to happen during this pandemic. Our experienced team of family law attorneys are available during this crisis to discuss your custody matters and how they might be impacted by the COVID-19 outbreak and the subsequent government response. Please don’t hesitate to reach out to us if you need help. We are continuing to operate remotely and serve clients during this important time through phone and video consultations.

Contributing authors: Amy Carei and Matthew Kuehnl, McKinley Irvin family law attorneys