Many parents are naturally concerned about the effect of the recent Shelter in Place orders in the San Francisco Bay Area counties on visitation exchanges required by their custody orders. The answer is nobody knows for sure, and so far there is no guidance from the available information regarding the Shelter in Place orders.
Although, custody orders remain in effect until modified, as a practical matter it may not matter because many California courts are either shut down temporarily or are only considering requests for emergency orders. It is unlikely that a court would consider a missed visitation an emergency in most circumstances. You can check the current status of your local court at https://newsroom.courts.ca.gov/news/court-emergency-orders-6794321 or the local court’s website.
In reviewing the recently released Shelter in Place order for my local county I did note a provision authorizing travel pursuant to a court order. This is probably sufficient to authorize travel for a visitation exchange but does not address refusing to travel because of concerns about the child exposing or being in situations where the child is exposed to the Covid virus going to the exchange or after the exchange. In any event, it is not clear whether a County public safety order supersedes the court’s custody orders or will be interpreted to allow travel for purposes of visitation exchanges.
Although, custody orders remain in effect until modified, as a practical matter it may not matter because many California courts are either shut down temporarily or are only considering requests for emergency orders. It is unlikely that a court would consider a missed visitation an emergency in most circumstances.
This means that for the time being, whatever decision is made by the parent who currently has a child in their care will be controlling pending further developments. That being said, the custodial parent should be able to support his or her decision with facts that show the decision is in the child’s best interest. Although it is unlikely that a parent would be held in contempt for good-faith decisions made in response to a public emergency, you have to expect some aggrieved parents will try.
A few recommendations:
• Try to work out an agreement with the other parent and document that agreement.
• Given how rapidly changes are coming in the battle against Covid infections, decisions should be made on custodial exchanges on an exchange by exchange basis for the time being. What makes sense this week, may not make sense next week.
• If possible, arrange for telephone and/or video conferencing through FaceTime, Skype or other video conferencing programs and apps.