Virtually all courtrooms in the country have closed for the COVID-19 pandemic. Adding to that is the pressure of schools being closed and parents off work.
Now that most school districts across the country have determined that they are not going to reopen until the beginning of next school year, what are parents to do?
Sharing custody of children can be trying under the best of circumstances, but living with the virus (quarantine rules, symptoms of illness, different views on the disease and parenting strategies, a lack of clear guidance from courts and experts) exacerbates parenting conflict.
Many courts have issued general guidelines that parents are expected to follow existing court orders. This means households that are sharing children back and forth are essentially living under one roof in a sort of conjoined bubble (two separate households with people going back and forth).
What do we do in situations in which a parent is breaking the rules with the children? This could be where one parent allows a teenager to visit his girlfriend or where the parent allows playdates or sees a romantic partner who is new enough to be isolating in a separate home or has created a group of homeschooling parents. How can a parent respond to a scenario like this when there are no courts and very few guidelines?
The judges in my home jurisdictions (I practice in two neighboring counties) have stated clearly that they will sanction lawyers who file emergency motions in situations that are not true emergencies.
What should a parent do to enforce the quarantine rules when they conflict with the court’s custody orders? What if the other parent is symptomatic or has been knowingly exposed?
If your ex won’t follow quarantine rules, communication about the problem will probably not be useful. In other words, this article could be filled with platitudes about communicating expectations and attempting to work out an agreement with the other parent, but, for purposes of this article, I will assume that is impossible.
3 Things to Do When Your Ex Won’t Follow Quarantine Rules
1. Make a Mediation Appointment
Even though communication is suffering, the parties should make a mediation appointment if it is available quickly (our courts provide custody mediation for free). I am not going to spend a lot of time on this because this article assumes that mediation is not likely to be successful under the circumstances, but for those who do best with a third-party present, this might help.
2. File a Motion to Seek an Admonishment and Lay a Foundation for the Change of Custody Motion to Come – the Front End of the “Double Jump” Motion.
Any new emergency custody motion should be approached with caution. Ensure that you have well-documented evidence before you bring a motion. If the other parent is in violation, do not just withhold the children.
The “double jump” motion requires a first motion requesting an order from the Court that Parent 1 be admonished to follow quarantine rules or risk losing temporary custody of the children. Define quarantine rules in the motion based on the CDC recommendations.
Ask the Court to make it clear that it expects both parents to follow these rules and that Parent 2 is given the opportunity to file a change of custody motion if Parent 1 does not comply with the quarantine rules.
If Parent 1 then fails to follow the rules, then Parent 2 can bring the change in custody motion. This makes it a “double jump” (two separate motions – first to get the admonishment and second to get the change in custody).
Filing a new motion with the Court should normally be a last resort under any circumstances. Under the current scenario, the requesting party would want to make sure that they were not going to be sanctioned for making the emergency request. The “double jump” motion provides a way of setting the stage for the extremely difficult second half of the “double jump” motion and puts Parent 1 on notice of an impending second motion to change custody.
The front end of the double jump motion says:
“I really don’t want to do this under these circumstances, but mediation has been unsuccessful or unavailable. She just doesn’t believe in the risks from the pandemic. I am requesting that the Court order her and admonish her to follow the CDC recommendations or the Court will consider a change of custody motion.”
3. The Back End of the Double Jump: The Change Custody/Change in Circumstances Motion
A now-retired judge I learned to practice in front of used to say in Court, “I am in the evidence business.” If a parent is going to make a request to the Court on an emergency basis because they believe the other parent is in violation of quarantine rules, they are going to need definitive proof of a knowing violation.
Courts simply will not change custody on an emergency basis with no hearing without definitive proof that a parent is in violation of quarantine rules. Anyone filing a COVID-19 emergency custody motion should be very strongly in the evidence business.
Motion-filing parents should assume that the burden of proof is going to be higher than virtually ever before, especially because the courts are unable to give evidentiary hearings. That means the judge will rule based on the motion alone, and why detailed evidence to back up the request is so important.
If the evidence of the quarantine rules violations is not solidly detailed, the Court will deny the request and, if there is truly no evidence, the requesting party will likely be sanctioned for making the request.
If Father is seeking to have Mother, who was previously determined to be “fit,” declared “unfit” (i.e., a change in custody orders because there has been a change in circumstances), Father could base his argument on the fact that Mother has knowingly increased the risk to the children by allowing playdates, thereby exposing the child to the virus and, by extension, exposing every person in Father’s household to the virus.
However, Father will need more proof than a hearsay statement made by the child (“our 8-year-old told me that she has been having playdates”) to prove that Mother is now “unfit” to parent the child.
A “change of circumstances” means a big change. It means a finding that it is no longer in a child’s best interests to continue the custodial status quo. What does it take to move a court to make this type of a decision? In theory, it would take proof that a parent has knowingly placed a child at risk, and probably repeatedly so without any reason.
Father must not only allege that Mother is breaking the quarantine rules; but doing so in such a way as to knowingly place the child at risk without any justification. And Father needs to allege that he is not also breaking the rules.
If the Court issues an emergency ruling changing custody based on Father’s allegations that Mother is secretly seeing her non-live-in boyfriend and breaking quarantine rules, Mother will likely file her own emergency request alleging a) that she is not breaking the rules and b) Father is breaking the rules.
Then we go into a death spiral of one emergency request after another, each side increasing the seriousness of the allegations and neither party having any actual evidence to present to the Court. This is what the Courts are attempting to dissuade with their threats of sanctions.
The Temporary Change in Custody Order Scenario: One Parent Gets Sick
A court should make a temporary change of custody order if one parent has tested positive for the virus and is symptomatic, and the child has not seen them for the prior 5-7 days (viral shedding); then, an emergency motion to the Court to make a temporary change order that the child should not see sick parent until after they have recovered from the full course of the illness or is no longer shedding the virus would likely be granted.
The motion must be clear, clean and concise though. “Father was tested. The test was positive. The child has not seen him during the viral shedding period. I ask that the child stay with me until Father recovers and then he can make up the time he lost.”
If the child saw Father within the last 5-7 days (during the viral shedding) and then saw Mother, everyone is already exposed and then custody orders probably do not need to change except when one person is too sick to take care of the child.
Prospects for Custody Conflicts During the Next Few Months of the Pandemic
I expect violations of quarantine rules to be a continued, and perhaps larger, problem over the next 3-4 months as opposed to the last 2 months. In the first months, I think people were doing their best with a mixture of fear and an initial burst of energy to follow the quarantine rules.
Now, it’s been 2 months; people are getting antsy, even people who are rational and following the CDC guidelines as best as they can; and then there are any number of people demanding now to end quarantine rules by violating the quarantine rules. Some areas will begin to lift restrictions or some restrictions, which will create numerous “gray areas” and inconsistencies, which themselves, will create additional problems.
If we move to a system of relaxed social distancing rules with new quarantine orders if there are “hotspots,” then the quarantine rules will come back. Because of this, we should attempt, wherever possible, to define the current set of rules between parents as clearly as possible.
The environment for emergency custody motions for violation of the quarantine rules is unforgiving, so ensure that such motions are well-documented with evidentiary support and consider the “triple jump” of 1) making a mediation appointment, 2) filing a motion to request an admonishment and invitation to file the change of custody motion, which are, 3) followed by a motion to make the change.
In any event, make sure you document everything you can because no matter what, if you need to make the change of custody request, you are going to need evidentiary support.
Finally, no matter what, if one party feels the children or themselves are in an unsafe situation, they should call law enforcement for assistance or consider filing a domestic violence restraining order if the situation has risen to the level of violence.
Jude Egan Ph.D., JD, is certified by the State Bar of California, Board of Legal Specialization, as a Certified Family Law Specialist. He was commended by the National Voluntary Organizations Active in Disaster for his work drafting the National Nonprofit Relief Framework for a policy paper ultimately adopted by the Centers for Disease Control. www.JudeEganLaw.com