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Custody and Visitation During COVID-19

· COVID-19,Child Custody
Mother holding young child

During the past few months, we have seen many changes in our lives. We now keep six feet of distance while waiting in line. Our kids finished out the school year online. Businesses are reopening with new rules in place. As we make our way through the “new normal,” among the questions we face is: How do we deal with child custody and visitation issues?

If you have an existing child custody and visitation order, the answer would seem easy: You follow the existing order. But the “real world” answers aren’t that simple.

Questions we have seen include:

  • I am (or my spouse is) a caregiver for a person in a vulnerable population. Can I keep my child home and not allow the other parent to have visitation out of concern that my child could bring COVID-19 home from visitation and expose the vulnerable person?
  • My decree says the other parent gets visitation during spring break. But the school extended “spring break” for three weeks before finally deciding to do school online for the rest of the year. My ex says he gets the extended spring break. I say he only gets the “original” spring break. Who’s right?
  • My child has asthma. My ex doesn’t keep a clean house. My ex also goes out to the bars, and the bars are where those big outbreaks in Evanston and Cheyenne started. Can I withhold visitation so that my child doesn’t get sick?
  • I have primary custody. But before we got divorced, we filed our taxes jointly and our refund went into my ex’s bank account. So the coronavirus stimulus check went into his account and he won’t give me my share or the kids’ share. What can I do?

We are sailing in uncharted waters with the COVID-19 pandemic. The normal rule regarding visitation is that the custodial parent must comply with the visitation order and allow the noncustodial parent to have visitation in accordance with the order. If the custodial parent refuses to allow visitation without good reason, the noncustodial parent can take the custodial parent back to court on a “motion for order to show cause” to ask the court to order the custodial parent to comply with the order. If the custodial parent continues to refuse to allow visitation without good reason, the noncustodial parent can ask the court to change custody.

Does COVID-19 count as a good reason to withhold visitation? This depends on your individual situation. You should talk to your attorney. If your child has a health issue, you should talk to your child’s pediatrician and get their recommendation. If you have a high-risk adult in your household, you should get a recommendation from that adult’s physician as well. You should not, however, withhold visitation without getting your attorney’s advice first. Don’t engage in self-help.

What about the visitation schedule? What if COVID-19 continues to interfere with the school schedule? The courts are starting to move toward ordering that the school schedule be “as defined by the school district as of the beginning of the school year” so as to try and avoid what happened this past spring. Many districts throughout the state extended spring breaks while trying to figure out how to proceed, and parents squabbled over whether “spring break” visitation meant the original spring break as defined by the original school calendar or the “extended” spring break. Assume that, going forward, the courts will likely interpret “the school schedule” to mean the calendar adopted by the school district as of the beginning of the school year.

How about the coronavirus stimulus? This is a situation that, unless your decree happened to be entered in April 2020 or later, could not have been anticipated. It appears that, if the stimulus for the custodial parent and/or the children was deposited in the noncustodial parent’s account – or if it was intercepted because the noncustodial parent is in arrears on child support – the custodial parent probably cannot get the stimulus during 2020. But the custodial parent can file for the stimulus parent on their 2020 tax return and get the payment in 2021. Unfortunately this doesn’t help if you need the money now.

If you have questions, please call our hotline, 877-432-9955, Monday through Friday 9:00 a.m. to 4:00 p.m., Mountain time, and talk with one of our hotline attorneys.

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