Some guidance from the South Carolina Governor on visitation in the COVID-19 era

Posted Wednesday, April 8th, 2020 by Gregory Forman
Filed under Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Of Interest to General Public, South Carolina Specific, Visitation

A few weeks ago I blogged about visitation denial in the COVID-19 era, as many of my clients had questions on whether they could deny or demand visitation. More than a few South Carolina parents have used this crisis as a justification to deny visitation. That blog was an acknowledgment of my uncertainty and an attempt to predict what factors the family court might consider in addressing contempt allegations once they reopened for business.

On April 6, 2020, our Governor, Henry McMaster, issued Executive Order No. 2020-21, which is better known as his “Stay at Home” order. That order provides specific guidance on this issue. At page 8 of the order in Section E(7), it lists as an “Essential Activity” [meaning it is not subject to travel restrictions] “Traveling as required by law, to include attending any court proceedings and transporting children as required by court order or custody agreement.” Evidently, the Governor considers complying with visitation orders to be an essential activity.

Given this order, I do not see how any South Carolina family court judge could subsequently excuse a parent for denying visitation solely on the basis of this pandemic. Parents who do so, and attorneys who encourage them to do so, are inviting contempt.

4 thoughts on Some guidance from the South Carolina Governor on visitation in the COVID-19 era

  1. conrad falkiewicz says:

    Greg,
    Parents of children with specific contributing health conditions (diabetes, asthma) and who have and are the one parent ultimately given control of health care decisions I think are unlikely to be held in contempt for making hard decisions. Having two conflicting duties in an order will simply make life tough on judges and waste a lot of money on lawyers. If there is a history of unreasonable denial of visitation previously, if there is no difference in the precautions taken by the respective households….then maybe a contempt citation will issue…but the penalty is not going to be worth the effort. As in your prior musing clients should be advised to seek as complete a course of mitigation as possible, document those efforts and then do what is best for the child. Judges are not going to send anybody to jail, they are not going to impose harsh financial penalties (including attorneys fees) on a parent who acts reasonably in an unreasonable time. I think attorneys who encourage Rule to Show Cause actions are going to be surprised by how many simply don’t get signed. Such orders are within the discretion of the judge and they are not limited to what is on paper, they will get to consider the framework and time frame of the alleged violation.

    Of course, I could be wrong.

  2. Given the lack of testing, the reality Of large numbers of asymptomatic carriers circulating in the population, the lack of deployed PPE supplies and equipment in the general population And the reality that children are among the most likely carriers of the illness that are not showing symptoms, carrying on visitation as usual now ensures spread of the illness

    You shouldn’t be visiting your parents, Your cousins or your kids right now. There is no way to know if someone is sick. We also know from M USC that rock hard people who are lat. Long distance runners in perfect health in the prime of life can end up being killed by this virus. We also know that grandparents with multiple pre existing illnesses can be out of the hospital in one day. This virus has killed children.

    Of course life goes on as usual for a lot of people and if people are h*** bent on having their visitation and can’t be bothered to inform themselves about controlling spread of the virus I guess people will die because people are stupid.

    We can be absolutely certain that the state of South Carolina is underestimating and under testing to hide the prevalence of the virus in our population now. DHEC admits that there are probably 9 cases of Covit 19 for every one on the official totals.

    Just because there are no funerals doesn’t mean people aren’t dying. I’ve had 2 friends die from this already. Their deaths are invisible because there are no gatherings and no funerals. It’s possible that covied 19 is what killed my brother. He was on a cruise ship in the caribbeans in early February. The hospital was never able to determine what exactly he had. He died after being transported back to the United States.

    1. Jill HaLevi says:

      Dear William,
      I am so sorry to hear about your loss. Thank you for sharing your story and –hopefully– motivating others to take this situation very seriously.
      ~Jill

  3. Dorothy says:

    We have had such a difficult time with this pandemic situation so let me explain.
    We traveled to Italy in Feb/March and when this virus began in Italy we were watching very closely while in the country. We altered our trains and plans to stay a week in Venice because it seemed like Lombardy was the most affected area. We stayed below the Lombardy region in Florence and Rome. We decided to come home early on March 13, the day the Prime Minister closed the country of Italy. We got to the USA in the 11th hour by the grace of God. We took so many precautions while on our trip to/from airports, planes, trains, automobiles, and every outing we took down to wiping off our shoes with surgical scrub upon returning to our housing. We used masks, gloves, sanitizer, zinc lozenges upon return from every outing and daily mega-dosing of vitamin C. Our biggest concern returning was our children and the possibility of making anyone within our family sick. We did health screenings, temperature checks and signed documets certifying our health upon leaving Italy, arriving and leaving London and upon arrival into the US.
    Two of our children were home with our nanny upon return (asleep it was very late) and two of our blended children were with their father. He agreeded to keep them for me while I was away becuase I was repaying his time for a camping trip he wanted me to keep our children for him so we swapped time, worked perfectly. One the other side with my husbands’ son, the bio mom had the son while we were away as opposed to leaving him home with our nanny and his half brother to maintain his school, sports, and normal schedule as his father thought this was best. They do not have the right of first refusal clause in their order but he left with the bio mom regardless. He tried to make a swap agreement so he would make up his time at a later date to which she denied last August when we first booked our trip. Bio mom claims the father is not entitled to any return time because he was not around to be with the child anyhow on holiday so she doesn’t have to return time even though he let the child stay with bio mom without being ordered to do so in good faith.

    The stepson was picked up the evening before our return home by the nanny from the bio mom. Bio mom did not have any conflict in returning son to father after we had been in Italy for 2 weeks uopn returning, it was fathers visitation week upon our return. They share 50/50 with father over medical and extra curric and bio mom over school and religion.

    Father upon returning home kissed both children before retiring for bed. 3 hours later father woke up unable to breathe, fever, chills and coughing, To say he was panicked in as understatement. I immediately did MUSC telehealth appointments for us BOTH and we were told we (both teaveling adults and any children we have already been exposed to) would now be quarantined for 14 days. The next day we were scheduled for the drive up MUSC testing clinic, We got doctor’s orders for us as well as the children that were home. We contacted the schools, the bio mom of the son who was home that we share custody of. I contacted the father to my children and advised not to bring them to my house for visitation that evening as scheduled and that he would have to keep them for 14 days while we have to quarantine. He had NO problem.
    The other bio mom, on the other hand, was nothing short of dramatic, blaming my husband for going to Italy to visit my family and even had the audacity to state to a GAL that we went to Italy on purpose to deny visitation and infect this child.

    We coordinated with the schools for packet work for both children. We coordinated with the district nurse manager for information and updates as to our testing results. We spoke to both parents of our other children, we sent messages to family wizard, attorneys and GAL regarding our situation. Our nanny was not affected as she was pulling out of our drive way as we turned onto our street as we were on the cellphone with her as this was her wish knowing the cases in Italy spiked from 500 to 12,000 in two weeks time while we were abroad. This was not a wreckless attempt to infect anybody especially not our family or community. We took the medical advice very seriously and it took every bit of 14 days to return our negative results. We were told to quarantine and shelter in place for 14 days. My husband did not allow his son to return to the bio mom 2 days after this incident occured at the medical direction of MUSC. The fahter is over medical and he felt this was an extreme medical emergency that could affect the lives of the bio mom and the communty surrounding her as she did not wish to quaranrine or shelter in place. We felt this was the most consciencious decioson we could possibly make for the safety and secuity of all family and communities involved.
    The bio mom continued to instruct the GAL her feelings towards us that we were purposefully denying visitation and that we planned to infect the son as part of a scheme to deny or withhold the child to return on the regular scheduled visitation day. We gave the bio mom, lawyers and GAL the doctors orders, work/school quarantine letters and primary care physician recommendations to stay in place until the results of our testing was retunred.

    Im so saddened that some of the legal GAL in the charleston area would see this for such a shameful event of purposefully witholding versus a medical emefgency fully documented by MUSC as we feel this will try to be used against us in family court. My husband has been pursuing full custody of his son since May of 2019. He had full custody for 3 years during the leal proceedings of his divorce. It was the father that agreed to 50/50 in mediation and he regrets it everyday becuase of the neglect, abuse and immoral activity his son is forceed to witness.

    Everyone has a story but NO ONE could have planned for a pandemic and we did what we thought was best and we will stand by that decision even though it affected the reg scheduled visitation days. I will add upon our negative testing results, the father did give the bio mom an extra week of his regular custody time to make up for the quarantine time. Clearly this is not a father with spiteful intentions but rather the truely best interest for his child. Thank you for reading if you have gotten this far. Your input is greatly appreciated as we are looking to retain counsel at this time. We have had to recuse current counsel and we will be working to recuse GAL who is friends with the bio mom and ex-lesbian lover of the bio mom who lived together for 8 years. This was not disclosed by GAL at the time the case was accepted and it was later discovered by myself and my husband via FB of the relationship. We have asked GAL to recuse herself to no avail and the former legal counsel would not file a motion asking for this GAL to be recused after the proof was presented. We are looking for the best of the best to fight a battle to save this child who is at such an impressionable age.
    All the best,
    Dot

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