Custody and Coronavirus  


Over the past century, pandemics have been relegated to the realm of academia. However, the novel Coronavirus has brought some new practical complications to the forefront of everyday family life. Especially where families do not all reside in the same home. Prior to the present outbreak, child custody agreements and custody orders did not contemplate the effects of a highly contagious virus (Covid-19) on the family unit. That will have to change.

Some parents who are not happy with existing custody agreements and orders are using the Coronavirus pandemic as an excuse for deviating from those arrangements. With so much uncertainty surrounding the novel Coronavirus, it is understandable that parents will take steps to protect their children. However, it can be difficult to distinguish caution from contempt. As every family has different needs, the courts will have to determine whether parents are acting to protect their children or if they are acting to deprive the other parent of access. While the courts have begun issuing determinations where parents have refused to follow access schedules citing concerns related to the Coronavirus, there is no standard for determining custody matters during a pandemic.

Earlier this month New York courts began virtual hearings for ongoing family and matrimonial matters, including custody disputes.  In response to these new realities, courts continue to make the best interests of the child(ren) the paramount concern in determining custody matters. In one such case, the Bronx Family Court ordered the immediate reinstatement of the parties’ access schedule where the petitioning father agreed to take precautions to safeguard against infection during his access time. Such precautions included avoiding public transportation and practicing social distancing. The court stated:

“Lest it be unclear, and to settle any confusion, it is the opinion of this Court that while our movements and lives may be severely constrained during this time period, it is just as important for the children to see their father as it is for them to see their mother. They have two homes and should spend time in both places. In other words, in times of crisis children need regular contact with both parents more than ever to provide love, comfort, stability and guidance, something that video and virtual connections cannot fully accomplish.”

Matter of SV v. AJ, 2020 NY Slip Op 20103

Where the courts go from here remains to be seen. It is likely that many of the decisions made now will be appealed and the standard for safeguarding the best interests of a child during a pandemic remains to be seen.

Attorneys will also have to adjust the advice they give to clients with respect to custody and access agreements. The traditional concerns of promoting a relationship with both parents will remain a substantial factor in settling custody disputes. Such considerations will have to be balanced with health concerns and the ability to provide access safely. New provisions will also be necessary in agreements and orders to establish arrangements not only for the current outbreak but also for any future public health crises.

Ideally, any family currently experiencing issues with respect to their existing access schedules should reach out to an attorney to explore their options with respect to enforcing an existing agreement or order. It is also advisable to reach out to an attorney to memorialize any temporary agreements parents may have with respect to arrangements made between parents for the pendency of the ongoing health crisis.

Some of the custody issues arising from the Coronavirus outbreak are outlined in the below article: