Can your ex withhold visitation if you have joint and they have final say pending a COVID-19 test?

Can your ex withhold visitation if you have joint and they have final say pending a COVID-19 test?

It’s hard to find a decree or other court order that would have been created to address COVID-19 because it’s still, as of the date this is written, a novel issue that nobody anticipated.

Let’s address what’s happening in pending divorce cases where concerns over exposure to or contracting COVID-19 could arise. Except in extraordinarily rare and particular circumstances I can’t imagine a court would give a parent the right to control another parent’s custodial and/or parent-time access to a child by conditioning it on that parent submitting to a test and/or testing negative.

Now if your ex is claiming that he/she has “final decision-making authority” as to certain aspects of the child’s life and welfare, that still would not necessarily mean that this parent could twist that power to deny you your custody and/or parent-time rights.

The generally granted power to decide health care matters would not, in my view, include the power to interfere with physical custody and/or parent-time by calling that a “health care decision”. Health care decisions are decisions of whether a child receives or does not receive health care/treatment from a health care professional. My word, if the “final say” on health care decisions could be twisted to empower a parent to deny custody and/or parent-time then such power would not be worth awarding because it’s use and potential for abuse would do more harm than good.

I believe that unless the court clearly and specifically gave a parent the power to control whether, when, and under what conditions the child’s other parent exercises custody and/or parent-time no court is going to construe “final say” on health care matters to include such a power.

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

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