Figure 1 – A mother following recommended guidelines with her children.
Ever since March of this year, custodial parents have been using the COVID-19 pandemic as an excuse to deny noncustodial parents their visitation or joint custodial rights. From the outset, courts have refused to be persuaded by such excuses, and now they have begun awarding attorney fees as a matter of course to stop unscrupulous parents from using COVID-19 to obtain a custody modification.
The reasoning is clear. Nothing in Governor Sisolak’s executive orders impinges on the fundamental rights of intimate association between a parent and child. That has not stopped numerous parents from claiming COVID-19 constituted a changed circumstance warranting modification of the other parent’s custodial timeshare. New York experienced the first wave of COVID-19 in America, and the prominent cases we will be discussing come from that jurisdiction.
Figure 2 New York was the hardest hit in the early stages of the pandemic and became the jurisdiction that set the early precedent on how coronavirus would affect existing custody orders.
Jennifer R. v. Lauren B., 126 N.Y.S.3d 324, 328 (N.Y. Fam. Ct. 2020).
In the Jennifer R. case, two same-sex mothers litigated the issue of whether or not the pandemic, in and of itself, created a sufficient change of circumstances to warrant a modification of their joint custody timeshare. The court held that it did not. Notably, the court noted that “the Mother has failed to demonstrate a change in circumstances warranting an immediate change in the custody arrangement. The Mother has failed to cite anything specific which the Ex-Wife has done to place the Child at risk of exposure to Coronavirus or otherwise. To the contrary, the parties were communicating and have developed an appropriate plan for the Child to lower his exposure of contracting the disease by reducing the number of exchanges.” Jennifer R. v. Lauren B., 126 N.Y.S.3d 324, 328 (N.Y. Fam. Ct. 2020).
The Jennifer R. case stands for the proposition that the pandemic does not per se warrant a modification of custody or visitation. The court noted the movant, who was seeking sole custody, had failed to identify any specific way the other mother was putting the minor child at increased risk of infection. This dictum seems to permit the possibility that a parent who negligently put the child at increased risk of infection may constitute a sufficient change of circumstances. However, the court’s holding did not reach that far, and the other mother’s failure to make such a showing was noted without holding the opposite case would have persuaded the court to modify the joint custody order.
S.V. v. A.J., 68 Misc. 3d 330 (N.Y. Fam. Ct. 2020).
In the S.V. case, published a couple weeks after the Jennifer R. case, the court went further in condemning the unilateral withholding of a child by a mother because of her “generalized fear” of coronavirus infection. The mother withheld her children unilaterally without applying to the court for intervention, prompting the father to petition the court for relief. No custody order had previously been entered. The court found for the father, ordering “the father’s in-person visitation must recommence immediately starting this weekend.” S.V. v. A.J., 68 Misc. 3d 330 (N.Y. Fam. Ct. 2020)(emphasis in the original). The court issued an order which provided for makeup visitation for the father by providing him additional weekends with his children.
Again, the court noted “the mother has failed to articulate, submit evidence, or even allege any particularized health concern such that the Court would consider suspension of in-person visits. A generalized fear of the coronavirus crisis we all face is insufficient to severely limit and perhaps harm a child’s relationship with a parent. This pandemic is not to be used to limit access by a parent or to flout valid orders of the court. Rather, valid orders of the court must be followed during this crisis unless a parent can articulate a specific health or safety risk, and can demonstrate to the Court that suspension of visits is warranted, which may be a heavy burden. In any event, in such a case a parent must then affirmatively move the court for emergency relief in order suspend any visitation order and may not resort to self help by failing to produce children for visits.” Id. (emphasis added).
The court, in dicta, still opined there could conceivably be a “particularized health concern” related to the coronavirus pandemic, but opined that it would be a “heavy burden” to prove that the pandemic posed a risk warranting a modification.
A.S. v. N.S., XXXXX/2019, 2020 WL 3978761, at *2 (N.Y. Sup. Ct. July 1, 2020).
In the A.S. case, the Court overruled objections to proceeding to trial virtually, holding that “further delay is not in the children’s best interests.” A.S. v. N.S., XXXXX/2019, 2020 WL 3978761, at *2 (N.Y. Sup. Ct. July 1, 2020). Since protracted litigation leaves the child in a state of limbo and wastes the parties resources, especially when they cannot co-parent or cooperate on minor issues, postponing trials till they can be safely conducted in person did not serve the child’s best interests. Id. The A.S. court overruled objections regarding the parties right to confront witnesses in person, holding that the best interest of the children would be best served by allowing the trial to go forward virtually. Id.
Parents should be mindful that the default rule enforced by courts views the coronavirus pandemic as irrelevant to the fitness of parents to exercise their timeshare. Families are not being quarantined from each other whether they live in one household or two. A parent who seeks to deny a joint custodian or non-custodial parent their ordered timeshare will face harsh consequences and likely pay that parent’s attorney fees if they are forced to bring a Motion to Enforce.
Figure 3 – Absent a particularized health concern, custodial rights remain undisturbed by the coronavirus pandemic.
While courts have opined that the pandemic, in general, does not pose a specific health or safety risk warranting modification, they have left the door open for such a case to be brought. However, as noted in the S.V. case, the burden is heavy and making such a showing will be extremely difficult. No prominent case has yet held that the pandemic warranted a custody modification, and in any event, a unilateral withholding of the child without application to the Court for a modification will likely result in that parent paying sanctions in the form of attorney fees, makeup visitation time, or a permanent reduction in their custody timeshare.
Lawyers should advise their clients accordingly, and parents should govern their actions accordingly.
For a thoughtful analysis of how the health crisis has impacted these matters and the difficulties imposed on courts in ensuring parental access, see the article by the Hon. Jeffrey Sunshine, the New York Statewide Coordinating Judge for Matrimonial Cases, COVID-19 and Future Custody Determinations, New York Law Journal, March 27, 2020.