In San Diego County, effective March 17, 2020, the Superior Court has been closed to the public. The coronavirus (COVID-19) epidemic has caused havoc in the majority of households, especially for separated parents. Irrespective of whether you have a Court order or not, the overall welfare of your child is each parent's top priority. We are living in an unprecedented time. We are taking directions from the Center for Disease Control and Prevention. The San Diego County and California Public Health Official has adopted the CDC directions.
However, what happens when the other parent is not exactly following the CDC directions?
What happens if the other parent is not taking COVID-19 as seriously as you are in your household?
What happens when the other parent is still hosting gatherings in their household, thereby potentially exposing your children to COVID-19?
What happens when the other parent disagrees about modifying the number of times you do exchanges during the pandemic?
What happens when the other parent disagrees about modifying child custody and visitation during the pandemic?
What happens if the other parent works in healthcare during COVID-19?
What happens if the other parent is identified as an "essential employee," and must work during COVID-19?
What happens when the other parent uses COVID-19 as a means to prevent you from caring for your child as agreed or currently ordered ?
What happens if the other parent stopped paying you child support during COVID-19?
The list of concerns are never ending. Here is a TEN-STEP GUIDE to assist those who are struggling through child custody and visitation issues during the coronavirus (COVID-19).
1. Jointly Talk to the Pediatrician
Legal custody is when a parent can make decisions about the health, safety, education, and overall welfare of the children. The parents are to consult with each other regarding enrollment and disenrollment in school, beginning/ending mental health services and selection or changes of a doctor, dentist or other health professional.
If you and the other parent do not have legal custody orders, then you and the other parent are on equal footing: you jointly have legal custody over your children.
If you and the other parent do have legal custody orders, then follow those orders. If you are at a disagreement with the other parent about the health of your children during COVID-19, then jointly connect with their pediatrician. You both should follow the advice of the pediatrician irrespective if either one of you disagree with that advice. Why? Unless there is actual danger to your child's health, then the Court cannot make any orders because it is not an emergency. If there is actual danger, then your first call should be to the police, then to child welfare services.
If you are at a disagreement with the other parent about the safety of your children during COVID-19, then you should call the police immediately. Also, consider filing for a temporary protective order. Restraining orders protect children who are being abused by the other parents or by the household members of the other parent. With a restraining order, you would have sole legal custody.
If you are at a disagreement with the other parent about the education of your children during COVID-19, then you should connect with their current teacher. Ask that teacher what your child should be doing in each of your households on which days. Be specific. You both should follow the advice of your child's current teacher irrespective if either one of you disagree with that advice. Why? Unless there is actual danger to your child's education, then the Court cannot make any orders because it is not an emergency. If there is actual danger, then your first call should be to the police, and then to child welfare services.
2. Communicate about Emergency Healthcare Decisions
Emergency healthcare decisions are decisions about your children that need to be made immediately (i.e. necessary surgeries). If your child is experiencing COVID-19 related symptoms (i.e. difficulty breathing, fever), this could be considered a medical emergency, especially if your child has a high fever. There is currently medical protocols around doctor and hospital visits, so be sure to follow those protocols. The priority would be to first manage the symptoms and contact with the doctor or hospital, and then to notify the other parent as soon as you are able.
Irrespective of whether you have a court order or not, both parents can make emergency decisions without the knowledge and consent of the other parent. Of course, you must inform of the other parent as soon as you are able.
Right now, it would be important to discuss with the other parent what incidents qualify as a healthcare emergency during COVID-19. If you two do not agree on those qualifications, then follow the advice of your pediatrician. Again, the Court is not available right now to address the qualifications for a healthcare emergency. However, you do not need a Court order to make a healthcare emergency decision.
3. Communicate about a Realistic Timeshare
Primary custody is whom the child lives with at least 51% of the time. Many parents equate this to be physical custody.
If you and the other parent do not have physical custody orders, then you and the other parent are on equal footing: you jointly have physical custody over your children.
If you and the other parent do have physical custody orders, then follow those orders. There is nothing in the law that would allow a disagreeing parent to deviate from your custody orders. If you two are in agreement to deviate from your custody orders, then there is no violation. Remember, the Court order is for you two to fall back on when there is a disagreement.
This would be an excellent time to discuss what would qualify for you two to deviate from your current arrangement during COVID-19. Would it be wise to suspend visitations if someone in your household is diagnosed with COVID-19 or experiencing symptoms of illness? Would it be wise to reduce the number of weekly exchanges by changing visitations to each parent exercising one-week with your children? Consider individually talking to your own doctor, and then jointly talking to your child's pediatrician about the best of course of action in those circumstances. If your child has a therapist, then jointly talk to the therapist about the impact of changing the schedule during COVID-19.
4. Follow the School Holiday Schedule
If your children are of school age, then they will have a holiday schedule. Note the school holidays that are of at least one week duration. Further, note the school holidays that are of a one-day in duration (i.e. observance of Dr. Martin Luther King Jr.) If a parent observed this one-day holiday, then would this result in an additional visitation exchange for the week? If yes, then reconsider observing that holiday (as well as all one-day holidays) for the sake of reducing the number of exchanges in any given week. Remember, the purpose is to reduce the number of visitations exchanges as to avoid exposure to COVID-19.
If you and the other parent do not have holiday orders, then you and the other parent are on equal footing. Look for all the months that provide a holiday of at least a one-week duration. Consider proposing that each parent care for the children for at least one-week during those months.
If you and the other parent do have school holiday orders, then follow those orders if you and the other parent are not in agreement. However, if you and the other parent can agree to exercising school holidays that are of at least one week in duration, then this could be a reasonable solution. Highlight the benefits of having fewer exchanges during the month. Negotiate having more virtual contact during those weeks.
Again, the Court is not available right now to address school holidays because it is not an emergency.
5. Negotiate a "Vacation" Schedule
Typically, vacations longer than 7 days are taken during the summer, fall, or winter. "Vacations" do not require travel. "Vacations" are additional time with your children, whether it's locally or overnight outside of your home. With the quarantine, CDC is recommending that people avoid traveling or spending overnights outside of their home right now. Remember, the fewer exchanges your child has during any given month, the less likely it is that he/she will be exposed to COVID-19.
If you and the other parent do not have any timeshare orders, then you are on equal footing. Depending on the age of the children, use this time to negotiate exercising visitations that require no more than two exchanges during the week. Of course, be prepared for the other parent to limit your time. Your focus should be on limiting exchanges and increasing video time with your children. Remember, these are temporary circumstances.
If you and the other parent do have vacation orders, then follow those orders if you and the other parent cannot agree to modifying the vacation orders. Again, the Court is not available right now to address a vacation schedule because it is not an emergency.
6. Reconsider the Number of Exchanges During the Week
By now, we hope that it is clear our guide advocates for limiting the number of exchanges of the children during any given week. It is very important for the children to have a routine, especially with at-home learning. Every day is essentially a weekend day right now if you and or the other parent work from home.
If you know that you are unable to assist the children with their at-home-educational curriculum, then do not insist on exercising weekday visitations. The parent that is available during their work hours to ensure the children complete their curriculum is more important than your timeshare. It may be in the best interest of the children to decrease the number of visitation exchanges during the week and allow the other parent to ensure the children complete their curriculum. Again, this is only a temporary circumstance.
Remember, if there is a disagreement and you have court orders, then you must follow your custody orders. We are in no way advocating violating Court orders.
7. Increase Virtual Contact With the Children
Virtual contact is better than telephone calls with your children now. On the days that you do not see your children, then we recommend having video calls with your children.
Irrespective of whether you have court orders or not, each parent should be exercising video contact with the children at least every 48 hours that he/she does not physically spend time with the children. The video contact should be set for a thirty-minute window.
This is a great negotiation tool because if the other parent is resistant to fewer exchanges during the week, then offer more video time throughout the day. Depending on their age, make sure your kids are actually able to sit through multiple video calls in a given day. Think about it in a way that could be a win-win situation: children spend more time at home and the other parent has more video calls.
8. Jointly Discuss With Your Children How To Be Hygienic Per CDC
Irrespective of whether you have a Court order or not, you and the other parent should be on the same page as it comes to hygiene. Do not talk negatively about the other parent exaggerating COVID-19 or being a helicopter parent. Your children should see you and the other parent on the same page about this. If the other parent is not in agreement with you about anything, then keep an open mind and listen to their point. Perhaps this is a good time to jointly talk with the pediatrician prior to having a joint session with your children about being hygienic, including covering face and hands.
Currently, the Court is not operational for non-emergencies. However, if you have documentation to show to the Court that the other parent is discouraging the CDC guidelines, then you may be able to modify Court orders. Remember, you must prove to the Court that the children are in immediate danger by the other parent discouraging the CDC guidelines. This is very difficult to prove because it needs to be more than a statement. We would discourage bringing negative statements as evidence to modify Court orders.
9. Jointly Complete a Virtual Co-Parenting Program
Whether you have a Court order or not, each parent should complete an online co-parenting course during COVID-19. It would be beneficial if you two complete the course together with your children. This is a great way to learn more from parenting professionals during COVID-19. Perhaps this could be a good way to validate your parenting styles during COVID-19, or it could give you a new perspective. Do it with an open mind.
When researching a virtual co-parenting program, consider Kids' Turn San Diego
. They offer a virtual Family Workshop for Separated and Divorced Families. Their workshop is operated through Zoom and it is for both co-parents and teens to learn separately. Additionally, there are videos for children ages 5-7 and 8-11. You can learn more about the organization by visiting their Facebook
For more resources for co-parenting programs, watch our video
10. Hire an Health and Wellness Professional For You
If you don't have a virtual health and wellness professional, then this is the time to research for one. Practicing self-care during quarantine is vital to your everyday wellbeing. A great professional will provide with you realistic, actionable tasks. Consider a free consultation with Healthy Living With Ruba
BONUS TIP: If all else fails, then submit to a private child custody mediator. It should be a binding recommendation.
On March 27, 2020, the Association of Family and Conciliation Courts and American Academy of Matrimonial Lawyers provided seven guidelines for separated parents, which can be found by clicking here.
We find these guidelines to be a good start, but not comprehensive enough. In California, the Court will heavily consider what each parent is doing to further the best interests of the child. Your best strategy is to communicate with the other parent as if a Judge is constantly present.