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COVID-19 and Your Custody Orders

With the current COVID-19 Pandemic many states, New York included, have declared a state of emergency and imposed restrictions and containment protocols affecting everyone. Many parents are, or will soon be, faced with many questions. “Do I have to send my child to his father’s/mother’s house for parenting time?” “What if my child’s mother/father won’t return the child after parenting time?” “Can I stop sending our child on visitation?” “Will I be in violation of, or, how do I enforce, my parenting time order?”

These are legitimate questions that don’t have easy answers as the pandemic has put us in uncharted waters. Court orders are often specific and failure to obey them carry consequences and should not be disobeyed lightly. One consequence of disobedience is contempt of court. What matters here are the circumstances a parent finds themselves in? Every situation is unique. How real is the risk of transmission to your child or of spreading the virus to other family members? Is the other parent infected or had confirmed exposure? What is the state of your child’s health? Does the other parent live in, or travel to areas with, conformed outbreaks?

How real the risk is obviously plays a role. Clearly, if a parent or a household member is infected or has been confirmed exposed, the risk is undeniable and a decision by a parent to refuse parenting time could be justifiable. But what about if one parent just lives in an area with confirmed cases? Or if the other parent wants to travel with the child to an area with an outbreak or that would subject the child to containment protocols. What if the parent doesn’t take it seriously and intends to ignore the recommendations and rules?

These are tougher questions. The less certain the risk the less justified a refusal to allow parenting time will be deemed.

Along with these issues, parents also face the ever-evolving recommendations of public health officials and the constantly changing rules and restrictions of state and local governments. Less than a week ago school districts across the state started to close, and in short order, the Governor ordered the closure of all schools and daycares. Just recently the Governor ordered the closure of all bars, restaurants, gyms, and theaters. New Rochelle is under quarantine. Parents may soon find themselves faced with a parenting time order that directly contradicts the recommendations and the rules of the state and local governments.

Common sense has to rule. It is never risk-free to violate a court order. But there are things you can do to minimize these risks. First, have to have an open and honest discussion about your concerns with the other parent and come up with a plan. Courts expect parents to work together for the best interest of their children – this is especially true during times of crisis. If you can’t put aside your differences under these circumstances it doesn’t bode well for when times are normal. Second, don’t use COVID-19 as a means to engage in questionable parenting habits, drive a wedge between your child and their other parent or unfairly deprive the child time with the other parent out of unjustified fear or spite. Third, stay up to date on the latest recommendations from the CDC and public health officials. What was good advice last week may be outdated today and being armed with the most current knowledge will put you in a stronger position to protect your child.

Fourth, follow the rules and restrictions put in place by the state and local governments. Fifth, talk to an attorney. Because each situation is unique, the ability to explore and be fully advised of your rights and obligations is key.

If you still find yourself unable to come to resolve these issues with the other parent consider trying to obtain a court order. New York Courts are not completely closed. While routine cases and nonessential court appearances are being adjourned, every county has a judge available to review emergency applications and to hold a hearing if it is deemed emergent and necessary. Talk to an attorney as to whether your case fits the “emergency” definition. If you find it necessary to file an emergency application a judge will review it and determine if a hearing is necessary and if a court order is warranted. If you follow the above steps you will put yourself in the strongest position to avoid any negative consequences should you decide that the best way to protect your child is to violate the court order.

No matter the current events, the experienced attorneys at Tully Rinckey are ready to handle your legal representation with sensitivity and care.

To schedule an initial consultation, contact us 24 hours a day, 7 days a week, at (888) 529-4543 or 

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