By Stephen D. Hamilton, CFLS
Immediate Past Chair, Family Law Section
This article by Stephen Hamilton does not necessarily express the views of California Lawyers Association or the Family Law Section Executive Committee.
The best security blanket a child can have is parents who respect each other.Jane Blaustone
Within an hour of the statewide “shelter in place” order being issued, I received my first call from a client regarding whether their parenting plan should continue in light of the unprecedented changes in our daily lives caused by the Covid-19 virus. It was not the last call I received.
The questions asked of me by clients have included:
- Does the shelter in place order apply to custody exchanges?
- Who has the children when school is no longer in session?
- My ex works in a hospital, shouldn’t our children stay with me?
- What happens when one parent lives with family members who are in the high-risk category?
- How do we carry out custody exchanges?
- What happens if a parent is placed in quarantine due to Covid-19 exposure?
The inquiries I received reflect the unique challenges we are facing due to the current pandemic. Unfortunately, there is no specific guidance either in the California statutes or case history to guide us through this time. This article addresses issues parents with California custody orders will face during the pandemic, as well as what custody orders may be issued after the restrictions imposed by the current pandemic are lifted.
Quite simply, there are no California laws which address custody issues during a pandemic. I found 2 reported (published) family law cases which referenced the swine flu, but neither case addressed how the swine flu impacted parenting orders. I was unable to find any reported family law cases which referenced “pandemic” or any of the specific pandemics which have occurred in the last 100 years (1918 Spanish flu, Ebola, H3N2 influenza of 1957-1958 and 1968 and MERS).
Some California courts have been unofficially following an emergency order issued by the State of Texas which provides:
- For purposes of determining custody schedules, the originally published school schedule controls.
- Custody shall not be affected by the school’s closure that arises from an epidemic or pandemic, including what is commonly referred to as the COVID- 19 pandemic.
- If the parties are in agreement, they can modify their schedules and orders.
The Texas emergency order sets forth a reasonable plan to deal with the challenges imposed on parenting plans as a result of the Covid-19 virus. Other courts have also issued statements that court orders for visitation take precedence and are enforceable notwithstanding the emergency orders which have been issued to address spread of the Covid-19 virus.
Family Code Section 3020(a) declares “it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children.” Section 3020(b) states it is “the public policy of this state to ensure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except when the contact would not be in the best interests of the child…”. Under Family Code Section 3020(c), when the public policy of ensuring the health of children conflicts with the public policy of ensuring frequent and continuing contact, the health of the children and “safety of all family members” is to prevail.
What do these statutes mean relevant to the Covid-19 pandemic? A reasonable interpretation by courts would be:
- Suspend all custody and visitation orders for children to be with a parent who has been diagnosed with Covid-19. However, all custodial time lost as a result should be promptly made up. In other words, the custodial time is not lost, it is rescheduled.
- If a parent is placed in quarantine due to exposure to Covid-19, the children should remain with the parent with whom they were residing at the time the parent was exposed to the Covid-19 virus. If the children were living with the exposed parent, they should also be under quarantine. If the children were living with the non-exposed parent, they should remain with that parent until the exposed parent is released from quarantine. Again, any lost custodial time should be made up when the exposed parent is released from quarantine.
- Custodial time that necessitates out-of-state travel or travel by commercial transportation (airplanes, trains, busses) should be rescheduled until it is safe to travel.
- A parent’s custodial time should not be canceled or limited due to their employment, absent an indication there has been exposure or infection. This is particularly true for parents able to work at home.
So how parents resolve disputes when one of the situations described above requires a change in the custodial schedule? Unfortunately, there is no easy remedy.
Each individual superior court is making a county-by-county determination as to court closures, the ability to file paperwork and when their court will re-open. Given the projected curves for Covid-19 as of April 1, 2020, it is likely many courts will remain closed through the end of May.
Courts are still processing requests for domestic violence restraining orders and, in some cases, emergency (ex parte) requests. However. several courts have issued warnings about filing frivolous or unnecessary requests when there is not a true emergency.
Hearings scheduled during the closure will be rescheduled. How your court will notify you of the new hearing date differs in each county. Your best resource is your local court web site. Searching for “superior court <your county>” will usually lead you to your court’s web site. If it does not, the following link has a listing of the web sites for all California superior courts: https://www.courts.ca.gov/find-my-court.htm?query=browse_courts
Once courts re-open, custody issues will have a high priority for resolution based on California Family Code Section 3032. In counties where judges are assigned to specific departments (e.g. family law), only domestic violence cases or cases entitled to priority due to the age or health of the parties will take precedence over custody hearings. However, it is anticipated there will be a significant number of domestic violence matters requiring hearings after courts reopen. The number of domestic violence calls made by law enforcement officers have increased since the shelter-in-place orders were issued. This increase in domestic violence is expected to continue as people remain in quarantine with abusive partners, and as the financial pressures caused by the impact of the Covid-19 virus worsen.
Once your custodial matter is heard, how you behaved during the Covid-19 pandemic will matter. In cases where domestic violence has occurred, California Family Code Section 3044 will create a presumption the abused party should have sole legal and physical custody of the parties’ children.
In cases not involving domestic violence, a party’s interference with custodial orders will be scrutinized. It may even lead to a change in primary custody.
Under California Family Code Section 3040, when a court makes custody orders, they are to consider the best interests of the children. “In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020.” In other words, if one parent did not follow custody orders or interfered with the other parent’s “frequent and continuing contact” with the children, a change of custody may be ordered. In those cases in which permanent custody orders have already been issued, a parent seeking to modify the custodial orders may have to establish a “change of circumstances.” However, a court could easily determine a parent’s failure to follow custody orders during a pandemic would satisfy the “change of circumstances” requirement.
An Opportunity to Co-Parent
With the great challenges which all parents are facing due to the Covid-19 pandemic comes great opportunity: the opportunity to improve your co-parenting with the other parent. This means using common sense to resolve practical issues, such as:
- How to address one parent’s Covid-19 exposure or infection;
- How to deal with long distance visitation travel;
- How to ensure your children have some form of frequent and continuing contact with the other parent; and,
- What protective measures you should implement between households.
Communication will be key in resolving these issues. In almost every case in which I received a Covid-19 question the parents were using Our Family Wizard. I was not surprised because I consistently recommend my clients in high-conflict custody cases agree to an order for parenting communication to occur via Our Family Wizard. Keeping a record of your communications will be key, particularly when one (or both) parents need to seek orders from the Court in the future based on the actions of the other parent during the Covid-19 pandemic.
Communication will also be important between parents so that children receive consistent and appropriate direction on how to modify behaviors during a pandemic, while avoiding creating fear or anxiety for your children. For example, both parents discussing and implementing consistent house rules regarding frequent handwashing, keeping your hands away from your face and maintaining social distancing. If you are able to establish these rules in both homes, and both parents are uniform in how they convey these rules to the children, the children will be more likely to follow the rules and, as a result, reduce the children’s risk of exposure or infection. Contrast that result to what will occur if one parent is minimizing or discouraging the children from following current health recommendations. Not only will you be undermining the other parent, you will be exposing your children to greater risk of infection.
Communication will also be important when parents have school-age children. As all schools are closed, and likely to remain closed until the Fall, parent communication during the mandated home education of school-age children will be critical. Moreover, there is an argument it should be mandatory. Regardless of what custody orders have been made in your case, California Family Code Section 3025 provides that “access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, shall not be denied to a parent because that parent is not the child’s custodial parent.” It is therefore reasonable to conclude records pertaining to children’s current home schooling should be shared between parents.
What can parents do when they have reached temporary agreements to accommodate the changes required by the Covid-19 pandemic? Write up written agreements, with counsel if you are represented, that refer to any agreements as temporary and “without prejudice.” The latter term means that in the future, the Court will not consider any changes agreed to on a temporary basis as a reason to change the permanent custody orders. For example, if mother is a physician working in a hospital where she is regularly exposed to Covid-19 patients the parties may decide it is best for the children to remain in father’s custody in the short-term. If that agreement is made “without prejudice,” father would not be able to use that agreement as a basis for seeking permanent full custody of the children after the current health crisis passes.
Use of technology to promote frequent and continuing contact with children during the Covid-19 pandemic is also critical. Where circumstances require a deviation from the normal custodial orders (for example when the parents live in different states and it is not practical to carry out custody exchanges due to the lack of flights), encouraging and assisting your child in having “virtual” parenting time will be important. Programs and applications like FaceTime, Skype or video conferencing software will lessen the harm to your children if they cannot be in the physical custody of the other parent.
We are experiencing an unprecedented disruption of our normal lives and routines due to the Covid-19 pandemic. How you respond to this disruption may impact the court’s future decisions regarding custody and visitation of your children. By working collaboratively with the other parent and making decisions that focus on the health and safety of your children, you will demonstrate to the court you are a parent who is committed to promoting the best interests of your children. By failing to work with the other parent, or attempting to alter the custodial schedule without a legitimate reason to do so, you will provide the court with evidence you are a parent who does not promote the relationship between your children and the other parent. Such evidence could result in significant changes to the custodial schedule, or even a change of custody, when the Covid-19 pandemic is over.
Stephen D. Hamilton has been an attorney for 25 years, with a practice in San Luis Obispo County devoted almost exclusively to family law for 23 years. He is Certified Specialist in Family Law and a Fellow in the American Academy of Matrimonial Lawyers. He is also a past Chair of the Family Law Executive Committee of the California Lawyers Association (FLEXCOM) and past Chair of the San Luis Obispo County Family Law Section. Stephen is a published author in the field of family law and a Multi-Activity Provider authorized by the State of California to provide continuing legal education.