Can my ex use the panic over COVID-19 to withhold the kids from me?

“Can my ex use the panic over Coronavirus/COVID-19 to withhold the kids from me?”

“Will I still be free to pick my son up at the end of the week from his spring break visitation? With all the panic over Coronavirus/COVID-19, I am really nervous that the other parent will use it as an excuse to withhold our child from me.”

You’re not alone. And you haven’t been since long before Coronavirus/COVID-19 was a concern.

We divorce and family law attorneys knew it was only a matter of time until Coronavirus/COVID-19 would become relevant to custody and visitation/parent-time disputes.

As most experienced divorced parents know, it doesn’t really matter what the excuse is for defying a court’s custody and visitation/parent-time orders, just that the parent has a legitimate excuse (or what he or she believes will pass for a legitimate excuse).

Parents who have wanted to keep the kids away from the other parent have always used the “Johnny is sick today” excuse, so the Coronavirus/COVID-19 just puts a more contemporary gloss on this old reliable excuse. Why?

Because sickness (real sickness) is often a very good reason for children not to go back and forth between their parents’ respective residences. If Mom or Dad is sick, and the child is at the other parent’s house, it doesn’t make sense to send a healthy child to a sick parent until that parent is no longer sick and contagious. If the child himself or herself is sick, and the the parent who would otherwise be spending time with the child during his/her custody or visitation is not sick, then it also makes sense for the child to stay put until he or she is no longer sick and contagious.

But any parent whose co-parent is a malicious type who wants to keep the children away knows how to game the system with plausible deniability. I can easily see how such a parent could claim that he or she fears the children or other parent may have been exposed to the Coronavirus/COVID-19 and then assert that fear as the basis for withholding custody or parent time from the other parent until the time consuming process of quarantine and testing is completed. It’s also very difficult for a court to discern whether such ostensible concerns were sincere or just a means of interfering with custody and parent time and depriving the parent and child of time with each other. And so these judges err, understandably, on the side of giving the ostensibly concerned parent the benefit of the doubt.

Here’s the unfortunate truth: with Coronavirus/COVID-19 being such a sensational hot topic in the news these days, no judge is going to want to appear as though he or she is not taking a public health crisis seriously.

So if you are the kind of parent who wants to keep kids away from the other parent, expressing fears over the transmission of Coronavirus/COVD-19 is a great way to interfere with the other parent’s custodial and visitation rights with impunity. The odds of you being accused of expressing such fears maliciously are slim to none. Otherwise stated, you’ll almost surely get away with it. That, however, doesn’t necessarily mean that the victimized parent and child do not have an avenue of compensation.

Let’s say that the other parent invokes fears over Coronavirus to keep the child away from the other parent for a period of 2 to 3 weeks. Once the danger has passed, if I were that other parent, then if the other parent will not agree to schedule 2 to 3 weeks of “make-up” or compensatory time that the child and I were denied as a result of the quarantine and testing period, I would go to court and move the judge to award the child and I such a period of compensatory time. The judge could grant the compensatory time on the grounds that it was denied due to sickness or concerns over sickness, and now that the sickness and/or danger of sickness is passed, the parent and child who were denied time together can now spend that entire period together without risk.

Utah Family Law, LC | | 801-466-9277

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