Celebrity divorce lawyer Christopher C. Melcher goes into detail about custody and visitation disputes during the COVID-19 pandemic and what you should do.
The problems that we’re dealing with are parents who live in different places, but have to share custody, and therefore travel to do these exchanges. Another problem is where children are isolated or quarantined due to the virus. And then finally, there’s generalized concerns about exposure to the virus that could happen with these custody exchanges taking place.
I’m a California family law attorney who has been practicing for 26 years. I’m a member of Walzer & Melcher, which is a seven lawyer top family law firm that solely handles divorce and other family law matters, and we do complex high stakes family law litigation.
In custody, everyone’s equal. It doesn’t matter what their background is or how much money they make or don’t make. All these problems are the same for every family.
Now, we do have significant safety concerns about travel and custody exchanges.
Now, some people unfortunately are going to use the virus as an excuse to withhold custody.
What does the other co-parent want and think and believe and what are their concerns? What about the child’s lens? What about the court’s perspective?
Whenever in doubt when we’re working through these issues is that kids come first, everything else is secondary.
Now, the problem that we have here is conflicting orders. We have a custody order that’s going to say the parenting plan and dates, times and places for exchanges. But then we have, after the fact, these health orders that restrict our movement and require, if we’ve been in contact with this virus, to isolate or quarantine. And so which one do we follow?
Now, there are some helpful tips here. One is when we have conflicting orders, we may look at what was the last order in time. So what was the last order to be made? Perhaps that one is the one to be followed rather than the earlier one. So in most cases, that would be the health order that would take precedence under this theory because it was made later than the custody order.
Another rule is that specific orders always take precedence over general ones. Some of these health orders actually have exceptions for custody exchanges.
But sometimes there’s going to be an order conflict.
Now, what if we don’t have that conflict, but we just have concerns about exposing ourselves or our child to this virus by doing the exchange? Do we just defy this court order and say we’re just not doing it because it’s too risky? Or do we say we’re going to go and comply with the order and hope that it’s safe?
You know, first of all, if you go to a lawyer, we have to advise you to follow orders. We cannot advise you not to do that. So please don’t take this as any type of legal advice not to follow an order.
What other particular risks are there for the exchange? What is the health of the other parent? Have they had the virus or are they quarantined, isolated? What about other members of their household? We’ve also seen people raise concerns about occupations if somebody is in a high-risk occupation for getting the virus and they don’t want to do the exchange.
What are the risks that you have when you’re going out to the store or going out in public of bringing the virus into your household or giving it to your child compared to the others?
Now, if there is an order and it is violated or the other party believes that it’s violated, they can ask that you’d be held in contempt of court. And that’s a criminal proceeding, very serious, but to convict for contempt, there has to be a willful violation of a court order. So not the mere fact that the order was not followed, but that a valid order was made and that the party willfully violated it. Now, if compliance was not possible due to these health conditions, then it would not be, in my opinion, a willful violation because you cannot do what you cannot do. If it’s impossible to comply with the order, you’re not going to be in contempt with it.
Now, if we can’t comply faithfully to the words of the order, we do want to comply with the intention of it. Now, when these orders were made, nobody was thinking about a pandemic, so all these plans that were made were now being undone by what’s happening to all of us. But if the order said 50/50 custody, equal custody, you got to make that happen. Now maybe that’s going to be through some Zoom meetings with the other parent or maybe altering days or something like that, but you want to do your best to follow the intent of it.
Now, ultimately there’s going to be some disputes where we can’t resolve and we’re going to have to go to court, but the courts are also suffering their own crisis-only open for true emergencies.
You can also ask for help from the police, but they’re really going to try to resolve this through encouragement-not by taking somebody to jail.