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Visitation denial in the COVID-19 era

COVID-19 is the first airborne global pandemic to take place since the development of specialized family courts in the United States. Never before has mandated social distancing interacted with the awesome contempt powers of family court visitation orders. Thus, I am getting numerous questions about complying with visitation orders from custodial parents who are considering refusing to send their children to the other parent or some third-party who has court-ordered visitation. I know my colleagues are getting similar questions.

Any attorney giving definitive advice on this topic is either much wiser or more foolish than I. We really cannot know how the family courts will resolve contempt petitions regarding COVID-19 related denied visitation. Different family court judges, and even appellate panels, may resolve the exact same fact pattern differently. Further, I am never comfortable advising clients to engage in actions that they believe put their children at risk but I am also unwilling to advise clients not to follow valid court orders. Ultimately my clients need to balance their tolerance for the risk of a family court contempt finding against the risk of exposing their children to COVID-19.

However, I have certain opinions on what the family courts will ultimately consider relevant in deciding whether to hold a parent in contempt for denying visitation. This is the advice I am providing all clients who ask these questions.

1) The mere fact that we are in the midst of a pandemic is not a basis to deny visitation.

2) If the custodial parent is denying visitation, put the basis of the denial in writing at the time the decision is made. That way, when that parent needs to defend a contempt petition, the basis for denying visitation will be clear and the client can avoid claims that it was simply a post-hock justification.

3) Offer additional and daily electronic visitation. Many family law attorneys are using zoom to video conference clients and I would suggest it for electronic visitation. It’s a free app and offers greater interactivity than Skype or FaceTime. Allowing such daily/frequent contact may defeat a finding of willfulness or reduce the contempt sanction.

4) If the custodial parent is denying visitation, offer reasonable makeup visitation in writing as part of the communication informing the other parent of the visitation denial. If the COVID-19 related concern is temporary, make the offer of makeup visitation at the time of the denial. If the concern is ongoing (perhaps the other parent works in a nursing home or is an ICU nurse), note that the other parent can have makeup visitation when the crisis passes.

5) If the custodial parent can get the other parent to agree to forgo visitation, preferably in writing, that parent is almost certainly safe from any subsequent contempt proceeding.

6) If the other parent or someone in their household has COVID-19, the custodial parent is almost certainly safe in denying visitation so long as that parent offers makeup visitation when they recover.

7) If the other parent or someone in their household has been exposed to COVID-19, the custodial parent is probably safe in denying visitation so long as that parent offers makeup visitation once the incubation period passes.

8) If the custodial parent simply refuses visitation because that parent believes the other parent is at greater risk of contracting COVID-19 and infecting the child, the custodial parent is on much less safe ground in denying visitation. The factors I think the family court will consider in whether to hold such custodial parents in contempt in are:

a. Did the custodial parent offer reasonable makeup visitation when denying the visitation.

b. Is the custodial parent practicing extreme social distancing for him or herself and the child. If the custodial parent is out and about, and the child is having play dates, I think the court is more likely to hold that parent in contempt.

c. Is the basis of the custodial parent’s denial consistent with that parent’s other actions. If that parent is equally high risk or exposing the child to others of equally high risk, the court is likely to hold that parent in contempt.

d. Has that custodial parent previously been held in contempt for visitation denial. I think the court will be more suspicious of such parents’ justifications.

9) The following is South Carolina specific. The family courts are closed to all but emergencies until at least May 1st. Even if the other parent objects to the denied visitation, the custodial parent still might be able to work out some alternative visitation that satisfies the other parent before he or she files a rule to show cause or gets that rule heard.

10) Something that’s not relevant yet but may become increasingly relevant as the pandemic proceeds is if the child or the other parent has recovered from COVID-19. My understanding is that if the child has recovered from it there may no longer be a health risk from exposure. Thus there would be no justification for visitation denial. Similarly, my understanding is that if the other parent has recovered from COVID-19, that parent no longer poses a risk from exposure (that parent’s other household members still might). Our subsequent knowledge of this virus may prove that recovery from COVID-19 does not eliminate the risk of exposure or transmission so this advice is provisional.

Stay safe.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Retain Mr. Forman

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