On March 12, 2020, Governor Northam declared a state of emergency in the Commonwealth of Virginia in response to the Coronavirus Disease 2019 (COVID-19) pandemic. In further response to the spread of the COVID-19, Virginia has implemented travel bans, limited public gatherings, closed schools for the remainder of the school year and implemented telework policies in an effort to keep as many Virginia residents in their homes as possible during this time.
On March 16, 2020, the Supreme Court of Virginia issued an order declaring a judicial emergency in Virginia through April 6, 2020. The Supreme Court subsequently entered two additional judicial emergency orders, each time extending the emergency period by an additional 21 days. As of its most recent judicial emergency order, the Supreme Court has extended the judicial emergency period through May 17, 2020.
The judicial emergency order limits matters being heard in Virginia courts during this time primarily to
emergency matters, including but not limited to, quarantine or isolation matters, arraignments, bail reviews, protective order cases, emergency child custody or protection cases, and civil commitment hearings.
On March 30, 2020, Governor Northam issued Executive Order Number 55, a “Temporary Stay at Home Order Due to Novel Coronavirus (COVID-19).” Effective immediately and continuing until June 10, 2020, the Order requires Virginia residents to stay at home, with a number of exceptions. The exceptions include, among other things, leaving the residence for the purposes of traveling to and from work, obtaining groceries, seeking medical attention, and “traveling required by court order or to facilitate child custody, visitation, or child care.”
So, if you’re a parent with an existing Virginia custody and visitation order in place, what does all of this mean for you, your child, and the other parent? How does this situation affect your current custody and visitation order?
Custody and Visitation Issues Raised By COVID-19
During this time of a rapidly spreading COVID-19 virus, social distancing and “sheltering in place,” many parents may question the safety for their child of their current custody and visitation arrangement. Perhaps the child has some underlying health condition which makes him or her more at risk for the virus. Maybe the other parent works in an occupation where he or she is more likely to be exposed to COVID-19. There are as many possible scenarios as there are parents and children with court orders in place.
You may be a noncustodial parent who believes the custodial parent is wrongfully violating the order. Or, you may be a custodial parent who feels that strict compliance with the order would be unsafe for your child at this time, and that what is really needed is a modification of the order which takes the current crisis into account.
In either case, the court is only going to hold a hearing on your custody or visitation matter if it rises to the level of an emergency. To get a court hearing during this current period, you would have to point to specific facts (including quarantine or isolation issues) that show there is some emergency that must be addressed now.
Steps for Custodial Parents to Take if They Have Concerns
The current pandemic is unprecedented, and many parents, attorneys, and judges are grasping for guidance. There is no bright line rule as to how courts will handle potential violations of custody and visitation orders based on COVID-19 health concerns. Nor do we know exactly how courts will modify or enforce existing orders. However, there are some steps that a custodial parent can take to keep their child safe while protecting the child’s relationship with the other parent during this time.
1. Attempt to reach an agreement with the other parent. Although an agreement reached by the parties is not sufficient to override a court order, the court will certainly consider an agreement signed by the parties for the safety of the child. Parents would be even better served by filing an addendum or new order with the court modifying the current schedule temporarily (while the CDC guidelines remain in place or until some agreed upon future date). Although Virginia courts are not hearing non-emergency custody and visitation cases at this time, the courts are open for filing agreed orders.
Summer vacations: Given that the school year has come to such an abrupt end, many parents find themselves wondering if this extra time out of school qualifies as summer vacation under their court order. If your child is directed by the school to remotely study and complete schoolwork, it can be argued that summer vacation has not started at this point. Additionally, if the order explicitly defines summer break, then, once again, summer break has likely not commenced under such definition. If the order fails to list specific dates for summer break to begin, the parties should look to an agreed order to resolve this dispute as well. The parties may file an order with the court setting forth the dates on which each parent’s visitation would begin and end for the year 2020.
2. Conduct a thorough analysis of the child’s best interests. Many times, the reason that parties have a court order in the first place is because they cannot or do not communicate well enough to reach an agreement on their own. In this instance, the parent who wishes to temporarily discontinue visitation would be well served to thoroughly analyze (a) whether there is good cause for denying visitation and (b) whether that denial would be in their child’s best interests. The relevant questions for this analysis would include:
- What is the age of the parties, the child, and any other people living in the child’s home?
- Is the child or anyone in the child’s household immunocompromised, or do they have any other relevant pre-existing medical conditions?
- For each parent or other adult living in each parent’s home, are they working from home, or away from home?
- If either parent or other person living in their home is working away from home, where are they working? What is the exact working environment, in terms of social distancing measures in place, possible exposure to COVID-19, etc.?
- Does either parent’s schedule require the child to be in childcare?
- For each parent or other adult living in each parent’s home, are practicing social distancing measures? If so, to what extent?
- What is the current visitation arrangement? How often does it require the child to be in each parent’s home?
- How far must the child travel for visitation? How is the child transported to and from visitation? Does it involve public transportation?
- Do you have any specific concerns about the ability of the other parent to assess the child’s needs during this public health emergency?
3. Offer alternatives. Consider offering the non-custodial parent alternatives to traditional visitation such as increased video calls with the child, or a schedule that reduces the amount of traveling that the child has to do in exchange for longer blocks of visitation. For example, perhaps the child will visit the other parent one weekend a month and stay an extra day or two rather than visit every other weekend.
4. Consider filing a motion to modify visitation. To the extent that the custodial parent reasonably believes that the child’s safety is at risk by visitation as ordered with the other parent, and the parties are unable to agree, the custodial parent should immediately seek the advice of an attorney prior to discontinuing visitation. If the custodial parent can point to specific facts which make compliance with the regular visitation schedule unsafe for the child, he or she may file a motion to modify visitation and hope the court agrees to hold an emergency hearing.
5. Be prepared for the outcome. If the court does not agree that the facts present an emergency situation, the custodial parent will face a very difficult decision whether to discontinue visitation anyway. If they honestly believe that compliance with the current visitation order would endanger the child’s health, the custodial parent may decide to discontinue visitation. However, they must be prepared to stand in front of the judge and defend that decision at some point.
Eventually the courts will resume hearing non-emergency custody and visitation matters. The custodial parent must be prepared for the possibility that, when that time comes, the court will find that parent in contempt of the existing order, and punish them accordingly. By following certain steps, the custodial parent may help to minimize the risk of a contempt finding later on. Those steps include: attempting to reach an agreement with the other parent, setting forth his or her specific concerns in writing to the other parent, and offering more telephone, FaceTime or other video calls with the other parent.
The reality is that custody and visitation disputes the courts don’t view as rising to the level of an emergency will only be addressed after the courts have resumed a normal schedule. Furthermore, no one can predict the way that every court will handle each situation. Courts will carefully consider the circumstances of each case individually, and determine whether decisions were made in the best interests of the child.
This time in world history should not be used to deny visitation simply for the sake of denial. Where a custodial parent has attempted to reach an agreement with the other parent and has stated genuine concerns for the safety of the child, the court will consider those in determining whether a parent has willfully disobeyed a court order without justification. In the meantime, parents should make every effort to work together to ensure that the safety of their child and the child’s relationship with each parent is protected as much as possible.
For answers to your specific questions regarding COVID-19 and your existing custody and visitation order, be sure to speak with an experienced family law attorney in your area. Livesay & Myers, P.C. has a team of experienced family lawyers with five convenient office locations, representing clients across Northern Virginia. Contact us to schedule a consultation today.