Child Custody Disputes, Child Exchanges, COVID-19,
and Shelter In Place Orders: Some Pointers

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By: Michael C. Peterson, CFLS

Date: March 31, 2020

I have a wave of past and present clients contacting me about exchanging their children per existing custody orders in light of governmental ‘shelter in place’ responses to coronavirus/COVID-19. I have read some of the articles available from CNN, Time, People Magazine, and my colleagues in California and other states on the topic of child custody, exchanges, and the pandemic. Unfortunately, many of the articles I have reviewed seem to be vague, dated, and watered-down. Moreover, the judicial authorities in most states across the country are not making clear advisements to the public about whether ‘shelter in place’ executive orders or pre-existing judicial child custody orders should be followed. On March 25 the Texas Supreme Court weighed in for the citizens of that state, advising the public to continue exchanging children between households (i.e. that custody orders trump ‘shelter in place’ orders).

Anecdotally, any elementary school teacher knows that little kids are basically germ and virus incubators, and many children do not adhere to the prevention methods for spreading viruses (not touching face/picking nose, covering mouths for coughing and sneezing, wiping body fluids on clothing, and washing hands multiple times per day - indeed, it seems to delight many children to cough into their parents' mouths). Having children in the home in proximity to grandparents is much like being quarantined on the "Disaster Princess" off Japan last month. I suspect that exchanging children between households is probably a significant factor in the spread of COVID-19 in Asia, Europe, and the United States to-date.

What do you think - is this the appropriate response the existence of an exponentially-growing and very lethal pandemic? Your answer may depend on whether the other parent has 'possession' of the kids, or whether you have. It is a tough dilemma, especially where the parent who has the children and whom refuses to let them visit in person refuses to facilitate digital forms of communication in the interim.

In my opinion and in light of the policy function being served by ‘shelter in place’, for the time being the practice of exchanging children pursuant to existing custody orders needs to be significantly curtailed, to protect both the individuals involved and connected to such children, and to protect society and the general population. The current numbers reported by experts through the press are that, if ‘shelter in place’ immediately goes into place nationwide (i.e. in all 50 states) and is strictly adhered to by most all people, the number of deaths directly from coronavirus in the United States will be between 100,000 and 250,000, but if not then the number of deaths could reach over 1,000,000. This does not even take into account the potential for unknown and long-term health problems for survivors of COVID-19 infections. However, hopefully this is a very short-term problem. One problem is that a certain percentage of the custody order population will seize upon these risks, and interfere with custody sharing, for reasons not related to the best interest of children.

My general approach is to advise clients as follows:

1. All other things being equal (but see risk factors, below), communicate frequently and try to work out an agreement with the other parent that the child(ren) stay(s) with the parent who is the primary/majority time parent, not exchange, agree to daily ‘media contacts’ like Zoom, Skype, telephone, etc., and agree to ‘make up’ time when ‘shelter in place’ is over. For extremely enlightened folks, there is also the option of sheltering in place together. For high-conflict parents, it is good idea to document everything from your efforts to come to an agreement and discussions of risk factors in writing with the other parent (texts, emails, talkingparents.com, etc.), and assume that a judge will be reading those written communications in the near future before you push that send button.
In a time of panic and claustrophobia, be sensible!

2. Consider and communicate with the other parent about risk factors like:

• Does one parent work in health care? If so, children should probably stay with the other parent.
• Does one parent continue to work at their office/outside of the home? And does that parent come into frequent contact with many members of the public? Parents who are police officers, grocery store workers, airport employees, and the like present a higher risk of contracting and passing on coronavirus, and children should probably stay with the other parent.
• Does one parent have other household members who are at heightened risk (i.e. the elderly, those with compromised immune and respiratory systems)? If so, children should probably stay with the other parent.
• Has one parent has been violating the ‘shelter in place’ orders individually and/or with the children (e.g. kids telling one parent that the other parent takes them to the store, takes them for small play dates with other children, etc.)? If so, children should probably stay with the non-violating parent.
• If there is a substantial difference, which parent lives in high population density areas/structures and which parent lives in low population density area/structure (i.e. large metropolitan areas compared to towns, towns compared to rural/country settings, and single-family homes compared to apartment buildings)? If so, children should probably stay with the parent in living in an area/structure of the lower population density.
• Even if the parents, to-date, have been exchanging/sharing since ‘shelter in place’ went into effect, this should be strongly reconsidered exchanging the child going forward until ‘shelter in place’ ends, because as the general population becomes more and more saturated with COVID-19 the risk of contraction/spread increases (probably in an exponential manner; this situation is one of a ‘lily pond scenario’ with the number of cases and deaths doubling every two, three or four days until the virus has run its course through society).

3. If you are unable to come to agreement, tensions escalate, and one parent refuses to exchange your child, it is likely that:

If the aggrieved parent contacts law enforcement, there is:

• A very high probability that law enforcement will tell that parent it’s a civil matter that needs to go back to family court (which is technically untrue in California, because there is a statute, Penal Code 278.5, making it a misdemeanor to violate a custody order but for budgetary reasons DAs instruct law enforcement not to charge people with 278.5, and further such advisement is ironic in that courts, at least in San Bernardino and Riverside Counties, are closed except for ex parte/emergency matters in Family Law),
• A lower probability that law enforcement would make a telephone call to the other parent advising/encouraging the exchange (as a show of authority in an effort have the violating parent come into compliance with the custody order),
• A very low probability that law enforcement might actually go to the violating parent’s home to knock and request the child be exchanged (as a heightened show of authority), but
• Almost no probability (unless a warrant issued by a judge exists directing law enforcement to take a child into the custody of law enforcement) that law enforcement will enter into the violating parent’s home, car, etc. and take the child by force.
• Judges will not make an ex parte order (unless in connection with domestic violence) to change custody/parenting time (and/or issue a warrant to remove a child from a parent violating existing custody orders) in response to a violating parent’s good-faith believe that ‘shelter in place’ or other risk factors do/should prevent child exchanges.
• When all this is over and the courts re-open (and they will be substantially clogged and back-ordered when they do), some judges might be tempted to giving violating parents a kind-of shorthand ‘pass’ for non-compliance with a custody order while ‘shelter in place’ is in effect (provided the violating parent is not using ‘shelter in place’ as a ‘sword rather than a shield’; i.e. there is not a substantial history of non-compliance with custody orders by the violating parent). However, it is more likely that judicial officers will take such matters on a case-by-case basis (so, again be reasonable and document your effort to communicate and come to an agreement with the other parent). It is impossible to predict how far the pendulum will swing in terms of the responses and reactions of our judicial officers to these issues and the choices that parents make during these difficult times, which may flood the family law courts in the immediate future (once they reopen), but virtually everyone who violates existing custody orders in favor of ‘shelter in place’ will claim (and most rightfully) they had no idea what the best decision was at the time of deciding how to respond to ‘shelter in place’, and so he or she hunkered down with the children as ordered.

I think that parents who have actual physical custody of the children who do not offer to Zoom or Skype or otherwise make the children available to the other parent consistently by telephone for substantial periods will be subject to negative consequences. Certainly, if the children are presently staying with you make a record of offering communication with children at all times to facilitate such contacts, mean it, and do it!

In light of the above considerations, some of my primary caretaking parents have asked me “well if we do not reach an agreement, should I just keep the child, then, over the protests of the other parent?” There are risks and rewards both to doing so, and to not doing so. By taking a stand and acting in compliance with the concept of ‘shelter in place’, but simultaneously violating the custody order by refusing to exchange, that parent does risk immediate and/or long-term litigation and negative consequences in Family Court (and incurring costs for hiring a lawyer, etc.), the possibility of new orders he or she does not like (changing primary custody and possibly even quasi-criminal contempt charges), and significantly harming the co-parenting relationship with the other parent (and even the involved children), but in doing so that parent is minimizing risk of coronavirus/COVID-19 spreading both in her or his household and in the public at-large. The inverse is true of risks and rewards for not complying with ‘shelter in place’ and continuing to exchange the children. If a parent chooses to no longer exchange without agreement, she or he has to know the risks and have the stomach (and possibly wallet) for a fight in the courts over the issue in the future.

The bottom line is we are in uncharted territory with coronavirus/COVID-19, ‘shelter in place’, and the impacts of same on custody orders. There is a strong policy of the law in California for both parents to enjoy frequent and continuing contacts with both parents, absent a very good reason not to do so (e.g. where one parent has a history of domestic violence, criminal behavior, and/or substance abuse/addiction). This policy is rooted in science (child psychological development), in general fairness, and in an effort to eliminate of gender bias in Family Law proceedings (i.e. favoring the gender of one parent as a kind of ‘default’ in terms of being the preferred custodial parent).

Coronavirus/COVID-19 represents a different problem not of the same kind/type as those reasons supporting the historic and deeply-engrained frequent and continuing contacts policy with both parents. COVID-19 has resulted in a strong, emergency health-based policy for people to socially distance themselves, and to have as little frequent contacts with others, to prevent the spread of the virus among individuals and the general population. This policy has been and will continue to be implemented by governors, county health officials, and even the President of the United States for the time being. Citizens will continue to be inundated with the message on news broadcasts, social media, and communications with friends and family. But this new policy is temporary and will only last so long as necessary. For the time being, people need to be prudent, exercise reasonable caution, and do what they can and must to stop the spread of the virus.

Please know that Mr. Arnold and I want to support you during these difficult times. We are both available for Second Opinion consultations from anywhere involving California Family Law issues, whether you already have counsel (we are discrete) or if you are self-represented. I tend to handle the custody side of the practice, while Mr. Arnold handles the financial/property side. Please feel free to set up a telephonic or Zoom meeting with us, and visit the link above! We do those consults at a reduced rate.

MCP