Can My Ex Deny Me Custody of My Child Because of COVID-19 and Other Questions

The first half of 2020 saw the US experiencing unprecedented times with the COVID 19 pandemic and stay at home orders.  It was a time of worry and anxiety that hasn’t quite gone away. To assist divorced families during this time, the North Carolina Family Court Advisory Commission issued recommendations in April, 2020.  These recommendations were written when the COVID-19 health related crisis was at its peak for the state but can serve as helpful guidance whenever there is an emergency situation for co-parents.

The entire guidelines can be read here. Note, these recommendations do not apply when there is a custody order that has been entered under a Chapter 50 Domestic Violence Protective Order.  These guidelines encourage all parties to follow as closely as possible the terms of their current order which is for the best interest of the children by promoting consistency and stability.

Common questions we have heard at our firm are as follows:

Q:  Can I deny parenting time because of the governor’s stay at home order?

No, custody exchanges are still permitted under the governor’s stay at home order.

Q:  Does our custody order still apply during the pandemic?

Yes, the order still applies. Parties are reminded that each parent is considered fit to care for children while the children are in their care. Day to day care includes following health directives regarding travel, social distancing, and hygienic measures.

Q:  I am afraid of the COVID-19 disease; can I stay in my home with my children and deny my ex access to the children?

No, as the guidelines note, the spread of COVID 19 in and of itself is not a reason to deny parenting time.

Q:  My ex is mandated to have supervised visitation.  I have been notified that the supervisor is unavailable.  What should I do?

The advisory commission recommends virtual visitation via WebEx, Skype or Facetime. 

Q:  Does the closure of schools effect our parenting schedule?

No, school closure do not automatically trigger a parenting custody schedule.  The parties should continue to follow their schedule pursuant to the school schedule for breaks and holidays.

Q:  My ex is required to have visitation at a local park.  The park is now closed.  What should we do?

Parties are encouraged to find a local, safe place if possible; parties should also try virtual visitation methods like WebEx, Skype or Facetime.

Q:  My ex and I usually meet at a local fast food restaurant and allow the children to play in the indoor playspace.  That restaurant is now closed.  What can we do?

Custody exchanges can still occur, perhaps in a parking lot near by.

Q:  I have a family member who lives with me who has been diagnosed.  Must I tell my former partner?

Yes, if a parent or a party with visitation rights is diagnosed with COVID 19 or if a household member is diagnosed, the other parent must be notified as soon as possible.  The parties should work together to find a solution that is in the children’s best interests.

Q:  My former spouse is spending a lot of time with new friends, people I don’t know.  Is that enough of a reason to change our current court order by asking for emergency relief?

Likely no at this time.  The Courts are working under restricted conditions and are only hearing emergency type cases. Emergency motions are only appropriate when a child is being exposed to a substantial risk of bodily injury, sexual abuse or risk that the child may be abducted or removed from the state for the purpose of evading jurisdiction of the North Carolina Courts. 

Q:  My ex and I have realized that we need to change the terms of our custody order since one of us has an essentials type job and the other doesn’t.  Do we need to formally change our order? If so, how do we do it?

A custody order can always be modified since the best interests of the children must always be considered.  A motion to modify can be filed and a consent order entered.