By Suraj A. Vyas | 3 min read
I want to discuss an issue that plagued a colleague of mine. Two parents had an interim order where the mother had primary custody and the dad had visitation every other weekend. The dad told the mom that he was diagnosed with COVID-19, but still wants visitation. As absurd as this may (and should) sound to all of you, this ACTUALLY happened. To go even further, the dad threatened to file contempt if the mom didn’t comply. Dad is still COVID positive. So, what is the mom to do?!
A quick medical note: The virus people are being exposed to is SARS-CoV-2. The disease caused by SARS-CoV-2 is called COVID-19. I’m going to use COVID-19 throughout this blog post just because that’s what most people know it as and this is meant to be an easy-to-digest legal blog post for the masses more than a medically-sound post. For the most up to date information, visit the CDC and WHO websites. Back to the blog post:
Well, to put it bluntly, I can’t imagine a judge actually finding the mom in contempt of this. In fact, filing for contempt would likely make him look bad. From a family law standpoint, she would still want to cover her bases and file a preemptive motion to temporarily modify custody nunc pro tunc (meaning it’s an order that will be effective on a past date) so that (even if it gets denied) she’s shielded from contempt. From a contract law standpoint, this type of situation could be seen as a force majeure (meaning something out of their control/an act of God) event.
A lot of family law revolves around what is in the best interest of the child. Common sense would say that sending a child to a COVID-positive household is NOT in the best interest of the child. Demanding a child come stay with you while COVID-positive is certainly NOT in the best interest of the child. In these turbulent times, judges are relying on their common sense to determine what is “reasonable” in these situations.
As attorneys, we’re in a tricky position. We can't counsel our clients to violate a court order. Attorneys have been reprimanded by the bar for situations like telling a client not to send a child with an intoxicated parent. As attorneys, we CAN advise clients to make the decision that they feel is in their child's best interest and let them know that we’ll deal with the ramifications. If the dad were to show up at the mom’s door, she may need to call the cops and we’d have to put a peace order in place.
As always, document everything! The mom could even offer virtual visitation by scheduling a video call with the child and the dad. If the dad refuses, that’s certainly going to negatively impact the ongoing case.
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