The Lawletter Vol 45 No 3
The ongoing COVID-19 crisis is affecting the lives of all Americans in many ways. One of those many ways is the exchange of children under custody and visitation orders.
This is a very uncertain area of the law, with essentially no court decisions yet available, but several basic points can be noted. First, the mere existence of the crisis, if neither the children nor any parent has actually been exposed to COVID-19, is probably not alone a sufficient basis for noncompliance with any custody or visitation order. Indeed, emergency orders issued by the governor in at least three states—Illinois, Indiana, and Ohio—expressly list travel required by a custody or visitation order as essential for purposes of travel restrictions. These provisions would seem to suggest a policy that mere fear of COVID-19, without any specific evidence of a risk of exposure to the virus, is not alone a sufficient basis to modify an order or excuse noncompliance.
Such a policy would be consistent with existing law regarding a somewhat similar situation, which arose in the early 1990s when AIDS became a widespread problem. Courts held consistently that the mere fear of exposure to AIDS, without evidence that the specific children at issue faced a real risk of acquiring the disease, was not a sufficient reason to alter custody or visitation orders. In particular, the mere fact that a parent was HIV positive did not justify restriction of custody or visitation, as the HIV virus was not transmitted through normal parent-child contact. See, e.g., North v. North, 102 Md. App. 1, 16, 648 A.2d 1025, 1033 (1994); Steven L. v. Dawn J., 148 Misc. 2d 779, 782, 561 N.Y.S.2d 322, 324 (Fam. Ct. 1990); Newton v. Riley, 899 S.W.2d 509, 510 (Ky. Ct. App. 1995).
While the HIV/AIDs cases are a relevant precedent, they are not exactly factually on point. Unlike AIDS, COVID-19 can be transmitted by close human contact. It seems likely, therefore, that if a parent actually contracts the virus, a real risk of transmission to children would exist, so that a valid reason might well exist for not complying with a court order. Indeed, compliance with a custody or visitation order in this setting might well violate the terms of emergency provisions requiring persons exposed to the virus to self-quarantine.
Suspending visitation during a period of treatment for the virus would be consistent with case law stating that visitation can be suspended when it threatens the child's health. "Visitation rights are to be strongly favored and will be denied only in an extreme situation in which the children's physical, mental, or moral health would be endangered by contact with the parent in question." Suddes v. Spinelli, 703 A.2d 605, 607 (R.I. 1997). "A noncustodial parent's visitation with a child can be deprived or severely restricted only if it is likely to endanger the child's physical or emotional health." McDowell v. McDowell, 2001 ND 176, ¶ 28, 635 N.W.2d 139, 149.
Between the two extreme situations suggested above—the case in which there is no unusual risk of exposure to COVID-19 and the case in which a parent has actually already been exposed—lie many different shades of grey. The key issue would seem to be the presence of a real risk that the children will be exposed to the virus. If the transferee parent is following the directives of all relevant governmental authorities (stay-at-home orders, orders requiring good hygiene practices, etc.), the court would probably be more likely to find only a speculative fear, of the sort which has traditionally not been a sufficient basis for limiting visitation. If the transferee parent is not following these directives, the argument for a real risk of harm would be stronger.
It remains to be seen how the courts will respond in situations when a pandemic illness is spreading uncontrolled in an area, even among those who are compliant with government directives. Another uncertain issue is how courts will treat parents whose work requires exposure to the virus, such as physicians, nurses, and first-responders. These cases are likely to present difficult situations, in which the right to contact with a child must be carefully balanced against the risk of harm to the child.
It is difficult to predict how the courts will handle these cases, as American society has not faced a true pandemic in the recent past. It does seem safe to say, however, based in part upon the analysis used in the HIV/AIDS cases, that the result is likely to turn upon careful and medically realistic assessment of the risk that visitation will cause harm to the children. Only when the risk is substantial have courts been willing to hold that health concerns justify noncompliance with or modification of custody and visitation orders.