Parents worry for their children. This is basic human instinct, and with the pandemic confronting every Virginian, every American, every citizen of earth, we worry even more. How will COVID-19 affect your children? How will your child custody, parenting time and visitation schedules change in this time of crisis?

Scales of Justice

Superseding the various statutes, laws, and court opinions is a single pronouncement by Governor Ralph Northam on March 12, 2020. Travel bans, school closings, telework — everything was upended. Within a few days, the Virginia Supreme Court declared a judicial emergency. The judicial emergency leaves divorced and separated parents wondering, where do they fit in?

Would transporting a child between parents be illegal? When does summer break begin so you can have little Jenny for vacation? How should you handle social distancing, with two different households and the various networks created by their circles of relatives and friends?

Both the governor’s and Supreme Court’s declarations include the phrase, “Stay at Home.” Yet Governor Northam’s March 30, 2020 Executive Order specifically provides carve-outs for certain life-affirming activities beyond your home:

  1. Obtaining food, beverages, goods, or services as permitted in Executive Order 53;
  2. Seeking medical attention, essential social services, governmental services, assistance from law enforcement, or emergency services; 
  3. Taking care of other individuals, animals, or visiting the home of a family member;
  4. Traveling required by court order or to facilitate child custody, visitation, or child care (emphasis added) … 

Double-Edged Sword

This carve-out that allows for travel under a court order is a double-edged sword. It provides the non-custodial parent with a legitimate reason to be travelling with a child, yet offers no legal remedy for modifications to visitation, parenting time schedules, or child custody.

Unless your child is physically in danger, you will not get an emergency hearing on any aspect of your current child custody arrangement.

Suppose the custodial parent, your child’s mother, uses COVID-19 as an excuse to prevent you from seeing your child. You could try to reason with her, explaining that you have a court order, but you will not be able to compel her to explain herself in Juvenile and Domestic Relations Court anytime soon.

Perhaps you are the custodial parent and you know your child is scheduled to visit her mother at the beginning of summer, for several weeks. Should you violate the court order and prevent the visit? The fear of contagion is palpable, valid, and ever-present. Could you be held in contempt?

For both custodial and non-custodial parents, the courts are not currently a legal remedy. Which leaves you with one choice: work out arrangements following the proud Virginia dictum: “in the best interests of the child.”

Suffer Little Children

Code of Virginia repeatedly sanctifies Virginia’s children in the phrase, “best interests of the child.” Parents struggling to resolve custody and visitation can adopt that phrase as their instruction manual:

  • Travel between parents within the same geographic area — Is it in your child’s best interest that the normal, healthy and loving relationships continue, or does some underlying cause (child’s chronic illness, one parent in an essential service, either parent having a compromised immune system) make such travel risky for parents or children?
  • Travel far afield during child visitation or parenting time — Seeking a normal vacation, should a non-custodial parent attempt to take a child to a distant beach, the mountains, or another state? Most medical professionals and lawyers would say that is not in the best interests of the child, since it unnecessarily exposes both child and parent.
  • Shelter in place and ignore custody arrangements — Neither parent should do this without clearly communicating with the other parent. Make reasonable attempts to express fears and concerns to the child’s other parent. Find a compromise, such as Facetime, Zoom meetings, or a socially distant but in-person meeting at one home or the other.

If you and the child’s mother work out an agreement, you still need some ground rules. Both parents must strictly limit the social network of potential exposure, so if little Jenny comes over, she cannot then go play at neighbors’ houses. Mom cannot invite extended family into her home. Agree on curtailing trips to closed facilities (beaches, parks).

Zealous Advocate

Eventually the Virginia courts will resume normal activities. You may contact your family law attorney at any time during the COVID-19 crisis to get legal advice, prepare a motion for modifications to custody arrangements, or request that the court alter parenting time schedules. When courts resume, your case will be heard and you will have a zealous advocate in your corner.

Confused by COVID-19? With a telephone call to The Firm For Men at (757) 383-9184 or by contacting us online, we can work to protect your rights, your children’s rights, and the health and well-being of all Virginians.