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Tag: COVID-19

Is the divorce rate rising during the COVID-19 pandemic?

I’ve been a divorce attorney for 25 years, and I don’t see any difference in the divorce rate between the pre-and post-COVID-19 eras. That’s not a scientific study, just anecdotal evidence from me. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Is-the-divorce-rate-rising-during-Covid/answer/Eric-Johnson-311  

 

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Can someone go to court to prevent their un-vaccinated ex from taking the kids, even though they share 50-50 custody?

Can he/she go to court? Yes. You can go to court for anything, no matter how serious or how silly your “cause” may be. Whether the court will take your request seriously and grant it is a separate question. 

Would the fact that a parent is not vaccinated against any particular disease (COVID-19 particularly, but certainly not exclusively) constitute good cause for ordering that parent restrained from exercising custody or visitation (also known as parent-time) of his/her own children? 

A few factors come to mind as I analyze this question. First, Is the unvaccinated parent violating the law by not being vaccinated? If the answer to that question is no, does that end the analysis? It could, but it probably doesn’t. Why? Just because one is not legally required to be vaccinated may not mean that the parent is acting responsibly by not being vaccinated. Then the question would be how responsible or irresponsible Is apparent acting if he/she is not vaccinated. For example, if a parent didn’t get a flu shot, and if the parent’s child or children are not abnormally susceptible to serious risk of permanent injury or death due to the flu, I would guess that most courts would not consider a parent who doesn’t get a flu vaccine to be unfit to exercise custody and parent time of his/her children.  

As this analysis applies to the COVID-19 virus, I don’t claim to be a healthcare professional, but it’s my understanding that children in a normal state of health aren’t likely to get deathly or even seriously ill if they contract various diseases, such as chicken pox or the COVID-19 virus. Because contracting such illnesses as a child does not afflict the child with any long-term irreparable harm, it would be hard to argue that a parent who fails or refuses to get a vaccine against such illness or illnesses constitutes an unreasonable danger to the child or even a serious risk of harm to the child.  

And think of it this way: dogs can seriously or even fatally harm children. Does this mean that a parent who has a dog as a pet has recklessly or negligently placed his/her children in harm’s way? What about a parent who likes to go horseback riding with the children? If one falls off a horse, he or she could break an arm or leg, or even suffer a serious spinal cord injury and be paralyzed for life. But does the level of risk dictate that the child never have the opportunity to ride a horse or learn to ride a horse? What about a parent who smokes, but does not do so in an enclosed space with the children present, so that any secondhand smoke concerns are minimal to nonexistent?  

Some may say there is a substantive difference between having a dog as a pet or learning to ride a horse and running the unnecessary risk of contracting COVID-19. But getting vaccinated is not risk-free itself. We know of some people who get vaccinations against different diseases who have a serious or even fatal reaction to the vaccines. Many questions swirl around whether the COVID-19 vaccine is safe. Is a parent who fears that he or she may suffer chronic or fatal harm by getting vaccinated exercising poor judgment such that he/she is considered an unfit a parent unfit to exercise custody or parent time? 

So the question really comes down to whether the government (in this case the judicial branch) can, by invoking the “best interest of the child” standard, infringe upon or deny parental rights if a parent exercises his/her freedom of choice not to be vaccinated. While I am sure that there are some judges who believe they can, I believe the majority of judges in this country (United States of America) believe that such would constitute an abuse of their discretion. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Can-someone-go-to-court-to-prevent-their-un-vaccinated-ex-from-taking-the-kids-even-tho-they-share-50-50-custody/answer/Eric-Johnson-311?prompt_topic_bio=1  

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The Utah courthouses will be re-opening soon. Don’t go back!

With the COVID-19 crisis essentially behind us now (please don’t start on the Delta variant) the Utah courts are re-opening the courthouses. And there’s nothing wrong with that . . . unless the gains and improvements that COVID-19 forced us to invent and develop get cast aside, which is what I fear may occur in the field of divorce and domestic relations law.
The COVID-19 quarantine forced the legal system to find a way to handle its caseload without forcing people to come into personal, close contact in the courthouses. And the legal system found a way: Zoom, or more accurately, remote appearances via video or telephone conferences through a variety of platforms.
But it came as no surprise to me that remote appearances didn’t merely keep the wheels of justice turning, it oiled and polished the axles, tuned-up the process of appearing for court proceedings, and resulted in faster, smoother, and less expensive ride. Lawyers didn’t have to bill for travel to and from the courthouses, clients and pro se litigants didn’t have to take a half or whole day off from work to appear in court, just to name a few of the benefits.
Are there enough domestic relations litigants and their attorneys who want to go back to the courthouses for in-person appearances, and enough compelling reasons to justify resuming the practice of going to the courthouses for the majority of court business? I don’t believe there are.
Full disclosure: I oppose resuming the practice of going to court as a routine matter in divorce and other domestic relations cases. I see no benefit to anyone (including, but in no way limited to, the judges and commissioners) in doing so. I know from my conversations with my fellow domestic relations attorneys that most of us feel this way.
Indeed, I assert that those who want to go back to pre-COVID-19 practices want to do so for self-serving and counterproductive purposes (i.e., 1) increased billing for travel to and from court and for all the fruitless waiting in the courthouse until it’s our turn in the courtroom and sometimes 2) inconveniencing and burdening the opposing party/counsel by making them blow a half or whole day getting ready for, missing work for, traveling to, and appearing in court in far flung places), not for the sake of better customer service, of making the legal system more user friendly and efficient, or for the purpose of improving the administration of justice. Deny it all you want, but we all know the truth.
Clearly, there are situations where a hearing by WebEx would be inadequate, even perhaps prejudicial, but for proffer hearings, review hearings, conferences (as opposed to evidentiary hearings/trials where it may be better to have everyone present in the courthouse), and the like, a significant percentage (I’d assert the majority) of domestic relations work simply does not require or warrant the costs and burdens associated with personal appearances in a courthouse.
WebEx/remote appearance has made it easier, more convenient, and less expensive for divorce and domestic relations litigants, clients, attorneys, and courts to handle so much court business and to handle it better. To discontinue the use of remote appearances would be a giant leap backward.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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What are tips for parents sharing custody during COVID-19?

What are the different tips for parents sharing custody during this COVID-19?

Best tip: don’t use COVID-19 as a pretext for withholding/preventing/sabotaging contact and care and communication between the children from the other parent. Don’t use COVID-19 as a pretext for alienating the children from the other parent. COVID-19 may raise some legitimate concerns and require some changes, even some necessary restrictions on contact between children and the parent(s), but where there’s a will to ensure that the loving bond between parent(s) and children is not unduly strained or damaged by COVID-19, there is a way.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-are-the-different-tips-for-parents-sharing-custody-during-this-COVID-19/answer/Eric-Johnson-311

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Can grandma sue if the child stopped visiting because of COVID-19?

Can grandma sue for custody/visitation if you stopped taking the child to visit because of COVID-19?

What would you do if your mother sued you for custody/visitation of a grandchild after you stopped taking the child to see her because of the COVID-19 pandemic?

1) As long as the grandma couldn’t prove that the child would suffer substantial harm unless grandparent visitation rights or custody were awarded and 2) as long as the opposing side and/or court didn’t cheat, I’d win the lawsuit because grandma’s making an incredibly stupid claim.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-would-you-do-if-your-mother-sued-you-for-custody-visitation-of-a-grandchild-after-you-stopped-taking-the-child-to-see-her-because-of-the-COVID-19-pandemic/answer/Eric-Johnson-311

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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 | divorceutah.com | 801-466-9277

https://www.quora.com/Can-your-ex-withhold-visitation-if-you-have-joint-and-they-have-final-say-pending-negative-COVID-19-test/answer/Eric-Johnson-311?prompt_topic_bio=1

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Are family law and divorce attorneys working during the Coronavirus?

Are family law and divorce attorneys working during the Coronavirus?

Yes, at least we are here in Utah, where I practice. Courts have done a fairly good job of holding hearings by telephone or Internet conference, so that they prevent people from having to come into contact with each other in person at the courthouse.

Some particular kinds of proceedings are still being held (even required to be held) in person in the courthouses, but anything that can’t is being held remotely or being postponed. Yes, some hearings and conferences have been postponed until we can meet in the courthouse (which is, for the most part, rather silly), but we are working.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Are-family-law-and-divorce-attorneys-working-during-the-Coronavirus/answer/Eric-Johnson-311

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Should we award custody to the parent who is a lower risk for COVID-19?

Should we award custody to the parent who is a lower risk for COVID-19?

Is it reasonable to give custody to the parent who is a lower health risk to the child during the Chinese coronavirus pandemic?

It is reasonable only if the “lower risk” is low enough to necessitate: 1) infringing the right of the children to the care and companionship of their other parent and 2) infringing the right of the parent to exercise his/her parental rights.

If one of you is a frontline emergency room doctor or nurse whose sole job right now is admitting people who are known to be infected with the Coronavirus to the hospital for treatment, while the other is a stay at home parent or a parent who works from home and thus has minimal contact with others, then in that situation it would make sense to award temporary custody of the children to the stay at home parent until the COVID-19 crisis passes.

But consider this: Should health care worker parents be cut off from kids during COVID-19? If a parent works in a hospital then he or she is going to be exposed to diseases of all kinds. It’s not as though once COVID-19 runs its course that this parent is never going to be exposed to other contagious, possibly even deadly, diseases. We don’t consider a parent who is a doctor or nurse inherently “unfit” as a parent just because he or she has a dangerous or potentially dangerous job. Can you imagine what would happen if the law provided that parents with dangerous jobs can’t exercise custody or parent-time of their kids?

It would also make sense for the parent who has been temporarily deprived of physical contact with the kids to be provided with ample and meaningful opportunities for the parent and children to interact by telephone and internet video conference. And it’s only fair that the deprived parent receive compensatory or make-up time with the kids once the COVID-19 crisis passes.

Now let’s examine a different job scenario. If one of you is a gas meter reader and the other is a stay at home parent or a parent who works from home, then neither one of you is at high risk of contracting the Coronavirus. Yes, the meter reader will come in contact with a few more people in the course of his/her work day, but not in close contact and not in a way that is likely to risk contracting the virus. So, while the meter reader’s risk is slightly higher than stay-at-home’s risk, both parents are low risk and there is no reason for the kids to be withheld from one parent because of a negligible, slightly higher risk.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Is-it-reasonable-to-give-custody-to-the-parent-who-is-a-lower-health-risk-to-the-child-during-the-Chinese-coronavirus-pandemic/answer/Eric-Johnson-311

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Why Deny Parents Behind on Child Support a COVID-19 Stimulus Check?

Here’s an interesting take on the current government policy that parents who are behind in the payment of child support will be denied COVID-19 stimulus checks:

https://www.nationalparentsorganization.org/blog/24577-eternal-verities-in-a-time-of-change

NationalParentsOrganization.org is a great resource for parents who are struggling against a legal system that is indefensibly opposed to joint custody and that far too often still shamefully treats fathers and working parents (or both sexes) as second-class citizens.

And more hat tips to NationalParentsOrganization.org for this other article:

https://www.ncsea.org/documents/Resolution-to-Exclude-Offset-of-Past-Due-Child-Support-from-Individual-COVID-19-Payments.pdf

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Do you agree with the decision to temporarily take custody from an ER doctor’s child due to potential exposure to COVID-19?

Do you think it’s fair that a judge temporarily stripped Dr. Theresa Greene, of North Miami, of custody of her 4-year-old daughter because the doctor works with COVID-19 patients?

Do you agree or disagree with the decision of Circuit Court Judge Bernard Shapiro to temporarily take away custody of an ER doctor’s child, and give her ex-husband full temporary custody, due to the potential her child could be exposed to COVID-19?

I disagree with Judge Shapiro.

Up front I acknowledge that reasonable minds can differ on whether Judge Shapiro made the correct decision (I think it’s more reasonable not to rule as he did). And I don’t know all the facts but having been a divorce and family law attorney for the past 23 years, on its face this has the look and smell of a parent seeking to exploit COVID-19 worries for self-serving purposes, not for the protection of the children.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Do-you-agree-or-disagree-with-the-decision-of-Circuit-Court-Judge-Bernard-Shapiro-to-temporarily-take-away-custody-of-an-ER-doctors-child-and-give-her-ex-husband-full-temporary-custody-due-to-the-potential-her-child/answer/Eric-Johnson-311

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Do you think coronavirus and the quarantine will increase divorces?

Today’s question is: Do you think coronavirus and the quarantine will trigger an increase in divorces?

Answer: Without question. There are obviously some legitimate reasons to curtail or even totally suspend parent-time if a parent or child is sick with the COVID-19 virus–we don’t want the kids and parents spreading the disease in their passing back and forth between houses. But for the rest of you, remember when Rham Emmanuel said, “Never let a crisis go to waste”? Well, a malevolent parent never lets a plausible excuse to interfere with custody and parent-time go to waste either. 

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Do-you-think-coronavirus-and-the-quarantine-will-trigger-an-increase-in-divorces/answer/Eric-Johnson-311

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Second and Third Judicial District Court COVID-19 Guidelines as of April 6, 2020

Second and Third Judicial District Court COVID-19 Guidelines as of April 6, 2020:

Second District

NOTICE REGARDING DOMESTIC CASES AND COVID-19

As commissioners in the Second District Court, we anticipate that many attorneys and parties may have questions about whether court orders will be interpreted differently to accommodate for the disruption caused by the current pandemic. We have met and discussed possible scenarios, and while there are some situations that will require handling on a case-by-case basis, we would like to offer the following guidelines for your assistance. As always, the word “child” is to be interpreted in the singular or plural as dictated by each case.

REGULAR PARENT-TIME: There should be no deviation from the normal parent-time schedule unless the child or someone in the child’s home has tested positive for COVID-19.  If that is the case, the custodial parent must provide documentation of the positive COVID-19 test to the non-custodial parent within 24 hours.  Following provision of the positive test, parent-time will be suspended for a period of two weeks. During the period of suspended parent-time, the noncustodial parent shall have at least 30 minutes of virtual parent-time (Google Hangouts, Skype, Facetime, etc.) each day.  The missed parent time will be made up during summer break or at another time agreed upon by both parties.

SPRING BREAK: Pursuant to U.C.A. § 30-3-35(f) and (h), spring break is the custodial parent’s holiday in 2020. The parties will follow the child(ren)’s normal school schedule for the purpose of determining when spring break occurs. Unless there is a positive test (see above) or a travel restriction, spring break will be treated as it would be under non-pandemic conditions.

Similarly, under U.C.A. § 30-3-37(6), spring break is the custodial parent’s holiday this year. If the order does require the child to travel for spring break and that travel is prohibited, the non-custodial parent will be entitled to an equal period of make-up time. This make-up time will be as the parties may agree, but otherwise would be added to the non-custodial parent’s summer time or permit the non-custodial parent to take spring break in 2021, at the non-custodial parent’s election.

RIGHT OF FIRST REFUSAL: The parties will follow their orders regarding the right of first refusal. The fact that the child may not be attending school does not affect this order.

For situations that may not be specifically addressed above, we hope and expect parents to be reasonable and try to work together to follow government guidelines and ensure the safety of their child and others.

This is a time when emotions are running high, and everyone is trying to make the best decisions possible to protect themselves and their families. Parents are strongly advised not to take advantage of the situation and engage in gamesmanship with each other. Children are afraid of the virus as well, and they need the reassurance of frequent, meaningful contact with both parents if at all possible without endangering anyone’s health.

Sincerely,

Commissioner Catherine S. Conklin
Commissioner T.R. Morgan
Commissioner Christina L. Wilson

Third District

THIRD DISTRICT COURT COMMISSIONERS’ NOTICE REGARDING DOMESTIC CASES AND COVID-19

As commissioners in the Third District Court, many attorneys and parties have questions about whether court orders will be interpreted differently to accommodate the disruption caused by the current COVID-19 pandemic. We have met and discussed possible scenarios, and while there are some situations that will require handling on a case-by-case basis, the following guidelines should govern in the absence of contravening directives of doctors and disease control experts.

  1. REGULAR PARENT-TIME: There should be no deviation from the normal parent-time schedule unless the child or someone in the child’s home has tested positive for COVID-19. If that is the case, the primary custodial parent should provide documentation of the positive COVID-19 to the noncustodial parent within 24 hours. If positive, parent-time with the noncustodial parent should be suspended for a period of two weeks. During the period of suspended parent-time, the noncustodial parent shall have at least 30 minutes of virtual parent-time (Google Hangouts, Skype, Facetime, etc.) each day. The missed parent-time will be made up during the summer break, or at other times agreed upon by both parents. If a child remains positive after conclusion of the two week period, this provision should be extended until the child is no longer positive.
  2. SPRING BREAK: Pursuant to Utah Code 30-3-35(f) and (h) the spring break is the custodial parent’s holiday in 2020. The parties will follow the child(ren)’s normal school schedule for the purpose of determining when spring break occurs. Unless there is a positive test (see above) or a travel restriction, spring break should be treated as it would under non-pandemic conditions.

Similarly, Under Utah Code 30-3-37(6) spring break is the custodial parent’s holiday in 2020. If the order requires the child to travel for spring break and that travel is prohibited, a parent losing parent-time due to the travel prohibition should be entitled to an equal period of make-up time.

  1. RIGHT OF FIRST REFUSAL: If the governing order allows for the right of first refusal to provide child care, the fact that a child may not be attending school does not affect the order.
  2. SCHOOL CLOSURES: COVID-19 school closures will not be treated as snow days, teacher development days, or other days when school is not scheduled and which are contiguous to the weekend or holiday period under Utah Code 30-3-35 (b)(iv) and (c). Thus, until the conclusion of the academic year, children should be returned to the other parent at the time the children normally would be delivered to school or the other parent.
  3. MISCELLANEOUS: For situations not specifically addressed above, we hope and expect that parents will be reasonable and will try to work together and follow government guidelines to ensure the health and safety of their children, themselves and others. Should parents attempt to take improper advantage of the court’s present inability to hear many matters, this could eventually result in the imposition of appropriate sanctions when full court operations resume.
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Will there be more divorces or more babies after the coronavirus is over?

Will there be more divorces or more babies after the coronavirus is over?

Both.

Why more babies will be born than normal. Whenever two people of the opposite sex are forced to remain isolated together for long periods of time, they will get bored, they will get agitated, and they seek relief from the boredom and agitation, and thus odds are that they will eventually engage in sexual intercourse. When that happens and when the woman is of child-bearing age, you’re going to have some pregnancies result. When this happens on a national scale, you’re going to see another baby boom (or at least a boomlet).

Why there will be more divorces than normal. Another effect of being forced to remain isolated together for long periods of time is that differences and strains on the relationship come can no longer be denied or avoided, and things to a head both quickly and intensely. With nowhere to go and/or no one else to turn to for escape, people are forced to confront the problems in their relationship. This can be extremely awkward at best, extremely painful at worst. When the relationship is a marriage, the examination many married couples will find themselves forced to make of the dysfunction(s) in their relationship will lead at least one of the two spouses to conclude (some correctly, some—sadly—mistakenly) that the marriage must end. When this happens on a national scale, you’re going to see an unusually high volume of divorces occur.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Will-there-be-more-divorces-or-more-babies-after-the-coronavirus-is-over/answer/Eric-Johnson-311

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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 | divorceutah.com | 801-466-9277

https://www.quora.com/Will-I-still-be-free-to-pick-my-son-up-at-the-end-of-the-week-from-his-spring-break-visitation-With-everything-being-speculated-I-am-really-nervous-I-have-full-custody-but-he-is-spending-spring-break-with-dad/answer/Eric-Johnson-311

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