Does COVID-19 affect my custody agreement?

The COVID-19 pandemic creates new challenges for following custody and visitation agreements between divorced and separated couples. This confusion affects formerly married couples and those who were never married but who have a child in common.

Each state has different rules, and within states, laws put into effect during the COVID-19 pandemic could vary from one town or county to another.

Whether you should follow your custody order or agreement depends on several factors.

How staying at home affects your custody order

If a court made your custody agreement into a custody order, or if you have a mediated order, the general rule is that you must follow the order. Many online court postings state that their citizens must honor their custody agreements. However, the epicenters of the COVID-19 pandemic are changing daily, making parents understandably concerned about keeping their children safe.

Many courts are closed except for what they consider "essential" matters. The term "essential" varies among states. If you and your ex are unable to follow your custody order, you'll have to agree to a new temporary custody agreement that you both can live with during the pandemic, and that reflects the child's best interests.

If you can't agree, contact a family attorney, or call your local family court to see if they're taking emergency applications for parenting issues. In many cases, courts will not consider these cases essential matters unless someone has COVID-19.

How to create a custody agreement during COVID-19

If you can't get into court to change your custody agreement, being flexible and creative with your ex will help you work out a new schedule. The best thing you and your ex can do is to work out a temporary agreement as to how you can effectuate joint custody or parenting time. The American Academy of Matrimonial Lawyers created some custody guidelines to follow during the pandemic.

Some parents have created new arrangements, such as:

• Moving in together during the pandemic so the child can see both parents
• Switching to their summer schedule, which could allow for every other week, every other month, weekend, or half-week visitation
• Switching to their school recess schedule
• Halting visitation and using videoconferencing and phone calls, along with allowing substantial make-up time after the pandemic ends

Violating your custody order during COVID-19

If you have a custody agreement or order and fail to follow it when you eventually get into court, the judge will ask whether you complied with the order, and if you didn't, you will have to explain yourself. The judge will want to know what your motivation was for postponing visitation.

It's unclear if judges will hold violators in contempt or make them pay the other party's legal fees for violating their custody order. Most likely, courts won't enforce that unless you were trying to prevent the child from seeing the other parent without good reason. The judge could, however, reduce your visitation time or even change custody if your motivation is suspect.

If you aren't currently complying with the custody order or visitation schedule, it's a good idea to keep a journal stating why you aren't complying, and what steps you're taking to encourage visitation by alternate methods.

Reasons for deviating from your custody agreement

Some reasons to deviate from the custody order are when the other parent or someone in their house:

• Has COVID-19
• Has physical contact with COVID-19 patients
• Fails to follow sanitizing procedures or social distancing
• Plans to bring the child to a public place without adequate protection
• Can be visited only by using public transportation
• Lives in an area that has many COVID-19 cases
• Doesn't have online capabilities for the child to attend classes

Explain your reasoning to the other parent in writing, although you may want to consult with an attorney before doing so because once something is in writing, you can't deny it or take it back. Promise the other parent that you'll allow them lots of make-up time, and follow through with it.

The important thing is to do everything you can to keep your child safe during the pandemic while trying to comply with your custody agreement.