Borton Petrini

Child Custody & Visitation During COVID-19

The Coronavirus 2019 Disease (COVID-19) has certainly affected families throughout the United States in a number of ways.  More recently, Californians have been affected by Executive Order N-25-20 (“shelter in place” for the entire state) that went into effect on or about March 19, 2020.  The purpose of this article is to provide basic information and guidance to consider as we navigate these strange days.  As a full disclaimer, this is not intended to be specific legal advice given for your individual case, but rather to narrowly address a common question being asked in certain custody/visitation cases, e.g., do we follow our current custody/visitation orders? The short answer is yes!

This is not the time to use this pandemic caused by the virus as an excuse to disobey current custody/visitation court orders.  Nor is this the time to unilaterally decide what orders should be modified and or followed.  If, however, you truly believe there are urgent circumstances warranting a modification to custody/visitation orders, the proper procedure is the same as before the Executive Order went into effect.  You should contact your attorney for a proper analysis of your circumstances.  Your attorney will direct you to the next steps if your attorney believes a modification is necessary or if exigent circumstances exist warranting a modification of your current custody/visitation orders at this time.

As a guideline only, if you believe your particular circumstances warrant a deviation from your current orders, you should first consider doing the following:

As a preface, if you have an emergency wherein your genuinely believe the health and or safety of your child(ren) is in jeopardy, you should call 911.  The following is intended to be guidance in non-emergency circumstances as a general rule only.

  1. Read your current orders carefully. Most orders have a paragraph specifically stating that the parents are encouraged to determine what custodial plans are in the best interests of the minor children.  This paragraph is intended to encourage parents to mutually agree to a custodial plan, which can be temporary or permanent in nature.
  1. Regardless of whether or not this is specifically addressed in your current orders, you should reach out to the other parent and discuss your concerns and or recommendations. Hopefully this simple, but important action will suffice and the two of you will be able to unite in making important decisions about the health, safety and welfare of your own children.
  1. You should contact your attorney first for additional guidance if you believe that reaching out to the other parent will genuinely jeopardize the safety of your children.
  1. Read and or research healthy materials regarding co-parenting and utilize co-parenting techniques as you deem fit and appropriate.

The key is not to make unilateral decisions modifying current child custody/visitation court orders.  If your attorney determines that a modification is necessary under your current circumstances, then it may be appropriate to file a motion with the court requesting a modification of your current court orders.  In many, if not all counties, the County Superior Courts remain open to scheduling hearings involving emergency restraining orders, urgent child custody/visitation issues, and or contempt of court order proceedings in family law.  Until told otherwise, it is also our belief that all courts continue to accept modification requests at this time whether deemed urgent or not.  Further, it is our belief that court hearings are being scheduled based on the limited court resources and urgency of the matter or issues addressed in a party’s pleadings, and there is no reason to believe that all matters will not be set for a hearing at some date and time.  Be advised, the court, in its discretion may reserve setting hearings until after shelter in place orders are lifted.



Fred Begun is Senior Counsel in our San Jose office of Borton Petrini, LLP specializing in Family Law and Estate Planning




Family Law

Legal Disclaimer: Please be informed that legislation and laws are rapidly developing in response to the COVID-19 pandemic.  Therefore, the legal analysis that is being provided is based on the analysis of the current legislation and current agency guidance, as it stands at this moment.  Additional legislation and/or changes to current legislation may impact the information being given herein.  This article is designed for general information only. The information presented should not be construed to be formal legal advice, nor the formation of a lawyer/client relationship.

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