Can I Deny Visitation During the COVID-19 Outbreak?

How does the coronavirus pandemic affect family court orders? Do you have to allow child visitation to your former spouse during the COVID-19 outbreak or can you deny visitation based on the safety measures that have been ordered by the governor?

What about child support payments? If you have lost your job or are suffering economically because of the coronavirus shutdown, will you be excused from making child support payments or will you be held in contempt of court?

If your child’s custodial parent is in a high-risk profession on the “front lines” – for example, a nurse, doctor, grocery store worker, or nursing home attendant – can you ask the court to change custody to reduce your child’s risk of contracting the virus?

What if the custodial parent becomes sick with COVID-19 or has been exposed to it?

Can I Deny Visitation During the COVID-19 Outbreak?

The short answer is no – you cannot deny visitation to your former spouse based on the COVID-19 epidemic, although there may be some exceptions.

This is the first time our family courts have dealt with a situation like this, so there is quite a bit of uncertainty about how courts will respond to denials of visitation or other violations of the court’s divorce decree or separation agreements. Despite this, there are some things we do know.

The rule is: You must follow the court’s order unless it is modified.

If you do not, you may be held in contempt of court, which could result in jail time, a fine, or other negative consequences. If following the court’s order is impossible, your attorney must request a modification of the order as soon as possible to ensure that you are not held in contempt of court.

Does the Governor’s “Home or Work” Order Prevent Me from Transporting My Child for Visitation?

If the governor of SC orders everyone to stay home, you can’t be held in contempt of court for denying visitation, right?

That would be correct, except the governor didn’t exactly order everyone to stay home. In fact, there is a specific exception in the governor’s “home or work” order for child visitation

Section 1.B. of the governor’s order requires everyone to stay home, except in cases of “Essential Business, Essential Activities, or Critical Infrastructure Operations” – and these exceptions collectively swallow the rule (which is why there appears to be no impact on the amount of traffic outside your window):

  1. I hereby order and direct that effective Tuesday, April 7, 2020, at 5:00 p.m., any and all residents and visitors of the State of South Carolina are required to limit social interaction, practice “social distancing” in accordance with CDC guidance, and take every possible precaution to avoid potential exposure to, and to slow the spread of, COVID-19, and shall limit their movements outside of their home, place of residence, or current place of abode (collectively, “Residence”), except as allowed by this Order, for purposes of engaging in Essential Business, Essential Activities, or Critical Infrastructure Operations, as set forth below and as such terms are further defined herein.

Section 1.E.7. includes transportation of children as an “Essential Activity” when it is required by a court order or custody:

  1. Traveling as required by law, to include attending any court proceedings and transporting children as required by court order or custody agreement.

So, despite the governor’s “Work or Home” order, and despite your fears that you or your child may be exposed to the virus if you leave home, the governor’s order does not excuse you from complying with court-ordered child visitation requirements.

What can you do?

Talk to your former spouse about the situation. If there are special circumstances, for example, if your former spouse has been exposed to the virus or if they are in a “high risk” profession, ask if they will agree to defer in-person visitation temporarily and visit with the child via Skype, Facetime, or Zoom.

If they agree, make sure that the communication is in writing – an email should suffice. Also, let your attorney know what you are doing and ask for their advice based on your circumstances.

If they do not agree, comply with your court-ordered visitation requirements. If you do not, you may be held in contempt of court and you may suffer consequences. The bottom line is that courts most likely will not find that the COVID-19 pandemic is a justification for you to deny visitation.

What if your former spouse is sick with COVID-19?

Obviously, if there is a confirmed COVID-19 diagnosis, that person must quarantine and remain isolated from the child until they are no longer contagious. In this situation, your former spouse will most likely understand and agree to quarantine from the child, but you should make every effort to facilitate phone calls and video calls, document everything in writing, and let your attorney know the situation immediately.

Can I Ask the Court to Modify Child Custody Due to the COVID-19 Outbreak?

What if the custodial parent is an essential worker who is at higher risk of exposure to the virus? Can you ask the family court to modify the custody order to allow you to take custody of the child?

First, all terms of family court have been canceled, at least through May 1, 2020, and that date may be extended. The courts will still be hearing emergency matters, but would the court consider this request an emergency?

Probably not… And besides, the court is not likely to grant the request so long as the custodial parent is taking all reasonable precautions and has not contracted the virus.

Some examples of emergency matters that the court may hear include:

  • A child who has been abandoned or who is suffering physical abuse;
  • A parent who is abusing drugs in the child’s presence (although probably not marijuana or prescription drugs taken as prescribed);
  • A parent who is arrested and incarcerated; or
  • A child who is arrested and taken into custody.

Most other matters involving visitation, custody, or child support will have to wait until the courts reopen.

What about child support payments? How will COVID-19 affect your obligation to pay child support if you are laid off?

Do I Have to Make Child Support Payments During the COVID-19 Pandemic?

You must make your child support payments unless the court modifies the amount you are required to pay. As with visitation rights, a modification of child support is probably not going to be considered an emergency, and so you may need to wait until after the pandemic passes before asking for a modification.

Loss of employment or a reduced income may be a change of circumstances that justifies a modification of child support, however. If you were laid off due to the COVID-19 crisis, you should continue to make your child support payments if it is at all possible, and understand the court will consider any stimulus payments that you receive as income.

If it is impossible for you to make your child support payments, you should pay every dollar that you can, document each payment, and contact your attorney as soon as possible for advice as to your current situation and to prepare to file for a modification of child support when the courts reopen.

Horry County Divorce Attorney

If you have questions about how the COVID-19 outbreak affects your family court proceedings, child support, visitation rights, or child custody, Myrtle Beach divorce attorney Daniel A. Selwa is prepared to help.

Call now at (843) 492-5449 or send an email for a free consultation to discuss your options.

can I deny visitation during covid-19 outbreak

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