-written by Attorney Samantha H. Pollin
Whether in a Court Order, in a written Agreement, or even simply based on a mutual understanding, there is likely a “regular access schedule” that co-parents follow with regard to the care and custody of their children. But how can families follow a regular access schedule during such irregular times? This is a question that separated or divorced parents are facing during the ongoing COVID-19 pandemic, but also one that the courts may ultimately face when “normal” life resumes.
On April 7, 2020, the New York Times published an article detailing examples of doctors, medical personnel, and other first responders whose child custody and access schedules have been turned upside-down as a result of the public health crisis. While the most obvious examples of disruption to the regular access schedule are situations when one parent is withholding the children and refusing to allow the other parent access with the children, there are other circumstances that can impose disruption.
During this difficult time, people are acutely aware of both their own health and their children’s health. People may be troubled as to whether a cough is the result of seasonal allergies or whether it could be a symptom of the coronavirus. This confusion, mixed with fear of the unknown, leaves parents uncertain as to whether or not to alter the regular access schedule or even continue with exchanging the children between homes at all. The reality is there is not a one-size-fits-all answer concerning custody and access schedules for children during a pandemic.
In the event that the regular access schedule is altered, whether as the result of agreement between the parents or not, the parent losing time with his or her children will likely desire make-up access. In some ideal scenarios, co-parents will be able to agree, either independently or through counsel, to a revised schedule that provides for make-up access. But what happens when parents cannot agree? And, what recourse is there when one parent is refusing the other parent access, or when one parent is exposing the children to a situation that the other parent considers to be unsafe?
Although the District of Columbia and the different counties in Maryland have put varying policies and systems in place while the courts remain closed to the public, each court has implemented procedures for reviewing pleadings that are filed purporting to be “emergency” matters. Unfortunately, there is no clear definition of what constitutes an emergency, and it is often the discretion of the judge or person reviewing the motion as to whether the court will consider the issue an emergency. While one court or judge may consider custody and access issues during the pandemic an emergency, another court or judge may not. Thus, there are likely limits on the relief that a parent can obtain on an emergency or expedited basis.
Notwithstanding the somewhat limited responses from the courts at this time, all courts are continuing to accept new filings. Those new filings will eventually be scheduled for hearings or receive rulings when the courts resume more regular practices. It is impossible to predict what any court or judge will do in response to one parent having refused to afford the other parent access with the children during the COVID-19 pandemic. Parents should, however, be preserving their rights, which may mean filing for a modification of custody and access or filing for contempt and enforcement for violation of the existing court order or agreement.
Parents whose access with their children requires supervision are encountering even more unique issues and challenges. In some cases, the person or persons that supervise the access may be willing to continue to do so during this time, so long as the government continues to consider such work essential. However, if the parent requiring supervision is unable to continue to employ the supervisor, whether due to the concerns of the supervisor or the concerns of the parties as it relates to a third party being around the children, the question or make-up time in the future may depend on the availability of the supervisors and the amount of time that has been missed.
Ultimately, as we continue to move forward during these unprecedented times, and as we continue to follow the guidelines set forth concerning the health and safety of ourselves and our community, the best interests of minor children remain and will remain the primary considerations of the courts with regard to custody and access. Because there is not a uniform solution for every family to resolve missed access during the pandemic, each parent should consult with his or her attorney to determine how to best address these ongoing challenges.