Visitation & COVID-19

We are in uncharted territory with this COVID-19 epidemic/pandemic.  No one really knows what a court will do if a custodial parent denies visitation to the non-custodial parent.  We offer these guidelines for you to consider in making a decision:

(1)  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.

(2)  Offer additional and daily electronic visitation (Skype, FaceTime, etc.).  Allowing such daily/frequent contact may defeat a finding of willfulness or reduce the contempt sanction.

(3)  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.

(4)  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.

(5)  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.

(6)  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.

(7)  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.