As I write this article, we are under a stay-at-home order in the State of Missouri due to Covid-19. With that comes a whole host of issues for family law. Currently, questions about child custody, denial of visitation, and child support are hot topics in family law.
Questions arise when one parent withholds visitation from the other parent out of alleged concerns regarding Covid-19. A common example is when one parent is a health care professional or an essential worker and the other parent denies visitation or custody citing potential exposure to the minor child or children. This is an evolving issue and one in which is not easily dealt with.
On the one hand, there are legitimate concerns that persons working in the health care industry are at increased risk for exposure to Covid-19 and therefore more likely to infect the minor child or children. However, with limited guidance on this issue, courts will most likely insist on more than the possibility of an infection transmission before the denial of visitation and custody is justified.
Most separate parents facing these challenging issues have a current custody plan in place. This parenting plan ordered by the court should clearly lay out dates and times for visitation and custody with the parents.
But what do you do if you are legitimately worried that the other parent may infect your child, or that the other parent’s household is at risk?
First, consult with the other parent before you do anything else. You may find that by talking about these issues with the other parent, the danger is not as great as you originally thought. If no satisfaction comes of that, then do call an attorney for an opinion.
When I get calls on similar issues, I screen to see if I can tell whether there is a legitimate concern for safety, or whether it is a ploy to try to gain the upper hand at custody. This is also what the courts will be looking for. Are the concerns of the withholding parent legitimate or are they a subterfuge to gaining the upper hand in a custody proceeding now or later? Once the courts open back up and the pandemic has largely subsided, parents will have to answer for their actions during this critical time.
The courts, in my opinion, will not treat lightly the withholding the visitation and custody in what seemingly appears to be a ploy to get more custody. It will be the basis for a motion to modify as to custody. People are stressed and anxious for many reasons right now. A parent taking advantage during this time will not be looked favorably upon by the courts.
What do you do if the other parent is withholding your custody or visitation? One option is file a family access motion. Although, this has limited appeal right now due to the lack of availability by the courts. Another option is file a restraining order, however, that can also be time-consuming and expensive. The right course of action might be to file an immediate Motion to Modify and ask for a temporary hearing through that proceeding.
If you share custody and you pay child support, and you suffer a reduction of income or loss of job, what do you do? The court order you have continues in effect until modified by the court. However, if you file a Motion to Modify at this time the courts may order that the child support order be reduced retroactive to the filing of the motion and proper service on the other parent. For this reason, it may be best to move forward with a child support modification at this time, at least filing it, even if it will not be heard for several months later.
There are limited abilities to get to the courts at this time. Likely, courtrooms will be open soon and parents will be able to have more meaningful access to the courts. If you have questions or need legal assistance, give us a call at 636-724-3355 and we will let you know what can and cannot be done.
