Do I have to exchange my child during the California ‘Shelter At Home’ based on our normal custody orders?

The State of California is going through an unprecedented and completely unexpected scenario with the COVID-19 ‘Shelter at Home’ Order from Governor Newsom. The order is not only affecting employers, work places, restaurants, bars, gym, Californian children’s schooling, but also extracurricular activities, day-to-day schedules, parent work schedules, etc. As a family law attorney in the Inland Empire, practicing in San Bernardino County, Riverside County, Los Angeles County, and Orange County, I have been getting many questions from clients, engaged in discussions with other attorneys, and received calls from potential clients regarding how the ‘Shelter at Home’ Order affects custody exchanges, if at all.

In an effort to provide insight and perspective to the parents struggling with what to do, I wanted to share some things to consider when determining if you should exchange your child according to your court ordered custody and visitation schedule. Every case is different and there is not a “one size fits all” answer. Your “home court” judge will be the ultimate decider for your case; however, most courts in California are open on a very limited basis and only for emergency situations. The likelihood that you will be able to get into court to ask for an order regarding a custody exchange during the next several weeks is highly unlikely. Therefore, how should you approach a custody exchange during the California COVID-19 ‘Shelter at Home’ Order and what facts should you consider?

Approach to Making a Decision

Talk to your co-parent

As with every custody change, modification, or temporary adjustment, always speak to your co-parent first. Do not make unilateral decisions, unless you have a court order allowing you to do so. And, as a general rule, even with a court order giving you the final say, the ability to co-parent is highly respected by judges and given weight when a judge makes future custody decisions. Meaning, in the future, a judge will ask, “Which parent is more likely to co-parent?” and may use decisions you make today to help make that determination. After speaking with your co-parent about any concerns you may have or adjusting the schedule if need be, if you are still unable to come to a mutual decision, you might want to involve a professional. If you and your co-parent are able to come to an agreement, make sure to put it in writing, either through TalkingParents or OurFamilyWizard or in an email. Best practice would be to have it drafted into a formal Stipulation and Order; however, it may not be practical at this time.

Involve a mediator if possible

Again, if you are unable to come to a mutual decision with your co-parent, look into involving a professional. Many mediators are offering online services right now. A family law mediator or a therapist engaging in co-parenting therapy can provide guidance on the reasonableness of your concerns, as well as the reasonableness of the other parent’s potential objections. Some mediators can even help unrepresented parents draft a formal Stipulation Order, if an agreement is reached. Again, even without a formal Stipulation Order,make sure to put the agreement in writing, either through TalkingParents or OurFamilyWizard or in an email.

Speak to an Attorney

In the event you are unable to come to an agreement and involving a professional is unsuccessful, I would recommend calling an attorney, if you do not already have one. An experienced family law attorney can give insight regarding how your court is currently operating and if there are any other cases with similar circumstances. Every case is different, and with the new COVID-19 “Shelter At Home” Order in California, each case has a new obstacle. Talking out the realities and legal options with your attorney will provide you peace of mind.

Make a decision

The most important thing to remember is that any decision you make regarding custodial exchanges needs to be made in the

best interest of your child with their health, safety, and welfare at the forefront

of the decision-making process. Using COVID-19 restrictions on travel or movement, in an effort to limit access for one parent, will likely be met with consequences in the future. However, being genuinely concerned about a custody exchange is not unreasonable, concerning the facts in some cases. So, how do you determine if your concern is reasonable?

Factors to Consider in Making a Decision

• How often are the exchanges? A message Governor Newsom and other officials have been reiterating is limit contact between people and limit the number of people you are in contact with. Exchanges occurring multiple times a week increases the risk of exposure to you, your children, and other household members. If exchanges are once a month, there is decreased risk of exposure. So, take the number of exchanges into consideration when determining a change to your current order.
• Where are the exchanges? If your exchange is curbside at each other’s homes, the risk of exposure is less than if you have to exchange in a public place. Also, if your exchange must occur at a local supervising agency and it is closed, then your options are limited. If your exchange has to occur at a police station or other public place, you may have to change the agreement. If exchanges always occur at school, again, you may have to modify the agreement.
• How far apart do parents live? In some custodial arrangements, the distance alone may prevent custody exchanges from even occurring. The COVID-19 “Shelter At Home” Order in California is limiting movement, but there are also travel restrictions in place by the federal government. Is international travel required? A custodial exchange will likely not occur in the next few weeks. Is interstate travel required? Also, this may prevent an exchange. As you can imagine, the closer parents live to one another, the easier it is to justify an exchange.
• What are the demographics in both households? Social distancing is our new normal. Only “expose” yourself to your immediate family members. When you have two families, potentially with multiple members in each household, the number of people a child is exposed to is increased. And, vice versa, the larger number of people the child may potentially expose. Do you have an elderly parent living with you? Do you have an immune-compromised individual living with you? Do you have non-family members living with you as a renter? Your renter may be going to work because he has to, but then in turn may be exposing you to the virus unknowingly. Having your child in that environment is not in his or her best interest. Making sure you are honest with your co-parent about your living situation is important always, but even more so during the COVID-19 “Shelter At Home” Order in California.
• What are the logistics in both households? School is out, for now. Potentially for a while longer. Childcare is a larger concern than it normally is. Homeschool is now required in some situations. Each household is potentially built to better serve these urgent and new needs. Is one co-parent a stay at home parent? If so, that parent may be in a better situation to handle the Monday through Friday schedule. Are both parents working and neither parent can provide childcare and neither can complete homeschool requirements? A very different custody arrangement may be necessary until school is back in place.
• Has anyone been exposed in either household? If one parent has travelled recently to “hot spots” or maybe has a household member that has been exposed to the virus. Keeping the child away from people who have been exposed is necessary. While news sources are indicating that children may not get sick as often, or as sick as elderly people, the risk is too great. We need to listen to the COVID-19 “Shelter At Home” Order and limit exposure for everyone – not only to protect our children, but to protect our neighbor with a compromised immune system, our niece who has lupus, our grandparents.

• Is there a way to create make up time? Spring Break is either right now for your child or coming very soon. Spring Break is almost always crafted into custody orders and, so, it is a very relevant question right now if visitation should occur. However, while Spring Break may be now, children are not returning to school for weeks beyond Spring Break. Creating make up time is likely going to be very easy, given fact your child will not be returning to school until the fall, in some cases. Also, summer is quickly approaching. Visitation often changes for the summer. Different schedules can be crafted in order to make up for missed time during the immediate COVID-19 “Shelter At Home” Order in California.

Overall, it is important to remember that children are taking cues from their caregivers and their parents during this time. They are picking up on stress and anxiety. Making sure you set aside differences regarding your custodial arrangement and make changes or adjustments to protect your child is of utmost importance.

During the COVID-19 “Shelter At Home” Order in California, our office is open for consultations and can offer insight into any custody or visitation concerns. Please call us at 909-466-5575 to set up a phone meeting, as we have a no in person policy at this time. We look forward to helping you during this difficult time.

Taylor Warner

Taylor has always been an advocate. Growing up the middle child with an older and a younger brother, Taylor developed a strong voice and personality and has always felt strongly about helping others. Becoming a lawyer seemed to fit Taylor’s personality and character – she is a strong leader and a bold advocate. Learn more here.