COVID-19 and Child Custody/Visitation in North Carolina

With coronavirus numbers climbing, and new “stay-at-home” orders in place in many counties, many parents have questions about the impact this has on child custody orders. Our experienced family law attorneys at Emblem Legal address some of the questions that are likely to arise for separated and divorced parents.

Do I Have To Allow Child Visitation During The “Stay-at-Home” Order?

During this unprecedented time of social distancing, quarantining, and “stay-at-home” orders, there is a lot of confusion for separated and divorced parents who share custody of their child(ren). Over the past few days, we have received a lot of questions from clients and people looking for guidance, regarding whether or not they are required to continue allowing child visitation during this pandemic, and specifically while the “stay-at-home” order is in effect.

There is no single right answer to this question, but there is some guidance that has been provided by the “stay-at-home” order, and the county. If you haven’t already seen the “stay-at-home” order, you can find it here. Additionally, when the questioned was posed to county officials regarding whether or not transportation for the purpose of exchanging children was allowed under the order, the response was that travel pursuant to law enforcement or court order, or pursuant to a custody agreement, is considered essential for purposes of the “stay-at-home” order.

This does not mean that continued visitation is appropriate in all circumstances. However, it does mean that you cannot use the “stay-at-home” order, by itself, to avoid a contempt action against you if you choose to withhold your child(ren) during this time.

Does this mean that I will be in contempt if I do not allow visitation during this time?

Generally, contempt is the willful disobedience of a court order. While some parents have very valid concerns over their children’s health and safety during this time, the COVID-19 threat may not be enough to justify withholding visitation. It is important to evaluate your situation based on the individual circumstances affecting you and your family. Some of the questions you may want to ask yourself in order to evaluate the risk within your family are:

• Is anyone in either household sick, or exhibiting any symptoms of coronavirus?
• Have I, or anyone in my household, been exposed to anyone with coronavirus or its symptoms?
• Has my child(ren)’s other parent, or anyone is their household, been exposed to anyone with coronavirus or its symptoms?
• Am I required to continue going to work, subjecting myself to significant risk of exposure?
• Is my child(ren)’s other parent required to continue to go to work, subjecting themselves to significant risk of exposure?
• Is there anyone in either household who is at high risk of more severe symptoms if the coronavirus is contracted?
• Am I still utilizing childcare for my child(ren) during the day?

These questions may help you to determine the amount of risk posed by continuing with your regular visitation schedule. There are certainly some situations in which continuing custody/visitation exchanges as normal may not make sense. If your situation is one which requires a shift in your regular custody/visitation routine, make sure that the non-custodial parent has very liberal phone/FaceTime/Zoom access to visit with the child(ren) during this time. Keeping your child(ren) in touch with both parents during this time will help to maintain some sense of normalcy for them. And before you make any decisions about withholding visitation, you should speak with an attorney who can advise you based on the specifics of your particular situation.

What can I do if my child(ren)’s other parent is withholding our child(ren)?

Right now, the courts are functioning on a very limited basis in order to lessen the chance of exposure posed by filled courtrooms and offices. While the courthouse is still accepting filings, meaning you can file a motion for contempt if your child(ren)’s other parent is withholding your child(ren), no hearings on these motions are being scheduled right now. Your motion will be heard, eventually; but, with the recent halt of court functions, and delays, you are likely looking at several months before the court can hear your motion. This does not apply to emergency situations. If your child(ren) are in a situation involving the threat of imminent bodily harm, or other statutory requirements, the court will consider your motion immediately, within the bounds of the statute. For issues of contempt during this time, you can file a motion, document the circumstances of your situation, make sure all your communication with the other parent is in writing, continue to request time with your child(ren), and utilize FaceTime, Zoom, or phone call time as much as possible with your child(ren) while you are not getting your regular, in-person contact.

If you have questions regarding what you should do in your particular situation, please contact Emblem Legal at 704-248-7683 to speak with one of our experienced family law attorneys.