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Part I: Divorce & Family Law During the COVID-19 Crisis – Visitation Refusal

May 28, 2020

Attorneys across Shulman Rogers’ full range of practice areas have been working to support and counsel businesses and families impacted by the COVID-19 pandemic. Our collective foundation has been rocked – and we appreciate the opportunity to provide clients with stability during these trying times.

In addition to working one-on-one with clients to respond to these unforeseen challenges – our Divorce and Family Law attorneys are publishing a series of articles, which we will share over the next few weeks, to address some frequently asked questions.

Custody

Custody issues were tricky prior to the COVID-19 pandemic, but this crisis has definitely generated additional layers of complexity. We have seen a surge in the number of people contacting us either because they fear for their child’s well-being if they send them to the other parent or because the other parent is refusing to allow children to travel to them for court-ordered parenting time or visitation. Visitation refusal is even happening between parents who live only blocks apart.

Visitation Refusal During COVID-19

In most co-parenting, or court ordered child custody relationships, one parent does not generally have the right to decide when visitations should or should not occur. That purview is left to the discretion of the courts or other custody agreements between the parties. Nonetheless, and during these times of crisis, the refrain often heard from a refusing parent is that their unilateral refusal of child visitation is justified for reasons including: the Governor’s “stay-at-home” order, potential health risks of car/train/bus/air travel, and the belief that the other parent will not comply with social distancing/safety measures necessary to keep children safe. In addressing those issues, consider the following:

  • The parent who has possession of the children asserts that the Governor’s “stay-at-home” order takes precedence over the court orders in their case. While every situation must be closely analyzed, the consensus is that these refusals are wrongful and that the standing court orders regarding child custody and parenting time should be followed. In fact, since this crisis began, the Maryland courts and the Governor of Maryland have both made specific public edicts that child custody orders are to be followed absent agreements between the parties or further orders of the court.
  • However, travel, specifically long-distance travel, may be considered differently. In this situation, we are not speaking about travel between the local DC Metro area since many divorced families live locally across the jurisdictional lines of Maryland, DC, and Virginia and in these situations, scheduled visits between families are generally expected to continue. However, we are talking about situations where there may be an unusual custody/visitation arrangement whereby children frequently travel great distances to spend time with their other parent/family. In these situations, some judges in our region have temporarily halted visitation schedules where children were scheduled to travel in this manner. Conversely, some area judges have declared that scheduled long-distance visits should still occur, but that children should remain with the out-of-area family after traveling for an additional specific quarantine period (e.g. two weeks) before returning to the local area family. Generally, long-distance travel causes additional concerns for the bench, due to the possibly increased risk of spreading or contracting the illness with children having to fly or make long drives with stops along the way. Even with limited access to judges and the courts at this time, many (but not all) area judges will view this specific situation as an “emergency” and arrange to hear and decide these matters remotely. More information about this point below.
  • The question of whether or not a parent can effectively determine the other’s level of compliance with social distancing rules and recommendations remains murky –quite subjective – and likely will not rise to the level of an “emergency concern” to be addressed by the courts. While these situations may be stressful for the family – simply “assuming” the other parent’s non-compliance with social distancing rules would not constitute a sufficient reason to deny or withhold visitation.

Court Closures

Currently, most of our courts are closed for nearly all purposes for the immediate future, likely at least through mid-June. While the courts have remained open for emergency matters such as domestic violence and child custody emergencies as discussed, how those matters are being handled has changed and continues to evolve. The operative fact to be gleaned here is that the term “emergency” is subjectively viewed by the courts and must truly rise to the level of an immediate safety concern to the children before a judge will consider addressing the issue outside of the ordinary course.

In claimed emergency situations, the coronavirus crisis has increased the need for the courts to address ex parte matters purely on the pleadings (papers filed with the court). Ex parte means that the matter is addressed with respect to or in the interests of one side only without the benefit of hearing from the other side. During these unprecedented times, oral arguments in support of emergency custody motions are only allowed in limited cases, and when deemed appropriate, those hearings are typically carried out through telephone or video appearances. In some situations, the pandemic has also prompted our courts to accept email filings so the court staff does not have to handle papers that might be virus-contaminated. Court procedures are still very much in flux and changing from day to day. Given this fact, when dealing with any court related custody issues, emergency or otherwise, it is even more important now to consult with an experienced family law attorney who is keeping abreast of local (and ever changing) court developments in your area.

Recommendations

If you are faced with visitation refusal during COVID-19 or with other disputes regarding visitation and custody, general wisdom dictates that court custody orders are to be followed or, if no orders are in place, then follow previous family practice or custody agreement, unless doing so would create a demonstrable risk of serious or irreparable harm to the children. If you believe that is your situation rises to the level of an emergency, then you may need to seek assistance from the courts. However, we caution you that going to court on an ex parte basis has always been difficult and is even more so at this time without the guidance of a skilled practitioner by your side. Most importantly, this is not a time to try to bend the rules, and the consequences could be harsh for parents who take advantage of the crisis to violate their co-parent’s rights of access.


MORE INFORMATION

The contents of this article are for informational purposes only and do not constitute legal advice.  If you think you have a legitimate reason to deviate from your regular custody practice or current court custody orders, or if you are facing a custody refusal, please discuss your situation with a member of our experienced and respected Shulman Rogers Divorce and Family Law Group.