In the Safer at Home era, family law has not escaped its impact. Families are having to deal with not only the health of themselves, but also that of their children and other family members. While this is a difficult matter to deal with, it is even more so when a family is separated by divorce or the contemplation of filing for one. How do the parents decide on whom the children are to be with? Our court system is virtually shut down for these types of matters so how are the disagreements resolved?

If the divorce action has not been filed, it is hopeful that mom and dad can work together to address the potentially competing interests of child safety and a parent’s right to have the child(ren) with him or her. Putting aside their personal feelings toward each other, the parents will necessarily have to work together to come up with an informal plan that reasonably addresses the competing interests. This clearly should not turn into whomever has the child(ren) with him/her gets to make the rules. Getting into a tugging match is not how this issue should be resolved. If the parents are able to collaborate on getting a plan in place, it bodes well for the future of the child(ren).

What about the situation where a divorce is on file and /visitation orders have already been made? Should the order(s) be followed? In the opinion of this author, the general answer is yes. There is no California precedent that stands for the proposition that in the event of a pandemic, visitation/custody orders should be suspended. Common sense needs to prevail, and the parties need to be flexible. If one parent believes that the other is taking all reasonable precautions against a child being exposed to the virus, there is absolutely no reason why the order(s) should not be complied with. If one parent has objective reason to believe that a child would not be safe in the other’s care, this needs to be communicated to see if there is room for improvement. Mere suspicion that the home of the other parent is not a safe environment for the child(ren) is not enough. If a parent uses Safer at Home as a sword to prevent the other parent from physical contact with the child(ren), this clearly is not child-centered conduct and cannot be in the child(ren)’s best interests.

Parent should keep in mind that eventually the courts will reopen. Their conduct during the Safer at Home period, whether a divorce has been filed or not, will have a significant impact on the Court’s decision once a perceived unreasonable position regarding visitation or custody is brought before the Court. Should the Court deem a parent’s position on the Safer at Home issue to be unreasonable or not factually based, there is a wide array of remedies available to the Court to remedy what has happened during the shutdown. As noted above, it is much better for parents to come to their own agreement rather than having a judge decide. Who is in a better position to determine what is in the best interests of the child(ren), a judge who really does not have adequate time to get to know the parents or the child(ren), or the parents. The answer is obvious.