Child Custody & Visitation During COVID Pandemic
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Should I send my children for visitation? What if the other parent is denying me visitation?
There is always a risk when failing to follow a court order. If one party chooses not to allow court ordered visitation, for whatever reason, the party entitled to the visitation can file a contempt action. If this happens, a hearing will be set and the party denying the visitation will have an opportunity to argue they did not deny visitation, or if they did that they did so for a good reason. The judge will then determine whether that reason is enough to deny visitation. If the judge finds that visitation was denied and that denial was not for a legitimate reason, the court can order makeup visitation, jail time, or even a change in custody.
It is also important to remember that the court system may not be equipped to handle these disputes immediately given the limitations on in-person hearings imposed by the courts at this time.
Some factors to consider when deciding if visitation should happen:
- Is a medical professional suggesting visitation not occur? (this would generally be the child’s primary care physician but could also be an emergency room or acute care doctor)
- Does the child have any health conditions that put them at higher risk for complications if they contract the virus?
- Are there other members of the child’s primary care household who are at higher risk of complications?
- Is the non-custodial parent (and others in their household) following recommended health guidelines such as social distancing and proper hygiene and disinfecting routines in the household where visitation will occur?
- Is the custodial parent (and others in their household) following these same guidelines?
- How long will the visitation be denied?
- What proposals or offers have been made for makeup visitation once visits resume?
Obviously, no two cases are exactly alike. A situation where the non-custodial parent is an emergency room physician at high risk for contracting the virus and the child has a half sibling in the custodial home who is immunocompromised will be viewed much differently then a situation where the non-custodial parent is a teacher currently off work and at home practicing good social distancing and otherwise following CDC recommendation and the custodial parent is still working everyday and having to send the child to daycare.
Likewise, a judge will likely find a 14 day pause on visitation after a non-custodial parent returned from a vacation in Italy to be much more reasonable then an indefinite cancellation for a non-custodial parent who is currently off work and having little contact with the outside world except for necessary grocery store trips.
It is also important the custodial parent assess their own compliance with best practices. Courts will be reluctant to impose restrictions on a non-custodial parent if the custodial parent is not following current recommendations.
This global pandemic is unprecedented in recent history and so it is difficult to know how judges will respond. Both parties should use their best judgement to determine the actual risk to the child and their immediate household and balance that against the importance of maintaining a strong bond with non-custodial parent.
In many instances, the best practice is probably to file a written request with the court seeking the temporary change in visitation. This still carries risk, but if you have a good case to make based on the factors listed above, filing a motion to address the issue at least makes it clear that you are doing your best to comply with the order while also balancing any safety concerns for the children.
Iowa Legal Aid Provides Legal Help to Low-Income Iowans
To apply for help from Iowa Legal Aid:call 800-532-1275.
- Iowans age 60 and over, call 800-992-8161 or apply online at iowalegalaid.org
- If Iowa Legal Aid cannot help, look for an attorney on “Find A Lawyer” on the Iowa State Bar Association website iowabar.org. A private attorney there can talk with you for a fee of $25 for 30 minutes of legal advice.
- As of March 18, 2020, our offices are closed for walk-ins until further notice, due to the coronavirus outbreak.
*As you read this information, remember this article is not a substitute for legal advice.