The COVID-19 pandemic’s effects are being felt throughout the family courts. In September 2020, a judge in a child custody case declined to grant custody to the child’s mother due to her refusal to wear a face mask. The child, a 14-year-old who suffers from asthma — an underlying condition known to increase the threat of developing complications of the virus — was deemed to be uniquely vulnerable and, as such, could be endangered by living with his or her mother. The judge also ordered that in-person visits would be monitored to ensure that the mother was wearing a mask when interacting with her child. In another case (that was subsequently overturned on appeal), a judge stripped an emergency room doctor of custody of her child due to the risk of exposure she faced at work. These cases are illustrative of the degree to which COVID-19 concerns have impacted the calculus that family courts use to determine child custody. If you have concerns about the risk COVID-19 poses to your child custody arrangement, please contact an Alpharetta child custody attorney

Determining Child Custody in Light of COVID-19 

When determining child custody, courts are guided by the general principle that custody should be “in the best interest” of the child. There are many factors that come into play when evaluating what the best interests are for any particular child, but chief among them are the child’s physical health and safety. Any living arrangement that would jeopardize those interests is unlikely to be considered by the courts. The COVID-19 pandemic has raised an interesting question for the courts: To what degree should a child’s risk of contracting the COVID-19 virus play in determining custody? When considering whether custody with either parent is in the best interest of the child, courts look to several factors, including (in relevant part): 

  • The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
  • The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
  • The mental and physical health of each parent
  • The home, school, and community record and history of the child, as well as any health or educational special needs of the child

The risk of contracting the COVID-19 virus is not insignificant when considering each of these factors. For example, if a child’s mother is an essential worker and her father is allowed to work from home, the court may determine that the risk of the mother contracting COVID-19 and exposing the child to it weighs in favor of awarding custody to the father. As with all health and safety concerns, the risk of contracting COVID-19 is now a factor for courts to consider when determining child custody. 

Child Custody Modification

The COVID-19 pandemic also affects pre-pandemic child custody agreements. In light of the pandemic, many parents may determine that their pre-pandemic child custody arrangement no longer adequately protects the health and safety of their child. There are many reasons why this could be the case. For example, as in the illustration above, the child’s custodial parent may pose a higher risk of contracting COVID-19 than the child’s non-custodial parent. Or perhaps the child’s custodial parent lives in a school district that has mandated in-person instruction and the child’s parents would prefer that he or she engage in distance learning from home. 

While it is tempting for many parents to make ad-hoc changes to their child custody arrangements to address these issues, doing so puts them in violation of their agreements and could expose them to legal liability. A better option for parents who have concerns about COVID-19 would be to seek a child custody modification from the court. In Georgia, parents may petition the court for a child custody modification if there has been a material change in circumstances. A “material” change is one that alters the child’s life significantly, such as moving to a different location or the incapacitation of the child’s custodial parent. Although the extent of the COVID-19 pandemic’s effects on the law is still being assessed, it is not inconceivable that a court would consider that a child’s custodial parent contracting the COVID-19 virus — or even their high risk of contracting it — could be considered a material change necessary to modify a child custody agreement. 

Should You Withhold Visitation Due to COVID-19?  

Just as many parents are tempted to make changes to their child custody agreements without court approval, many may also be tempted to discontinue visitation due to COVID-19 concerns. For example, a custodial parent may wish to keep his or her child from visits with the child’s noncustodial parent due to the non-custodial parent’s higher risk of spreading the COVID-19 virus. Or perhaps the child’s non-custodial parent may be too lax in wearing a mask or taking other necessary precautions to guard against the virus, potentially putting the child at risk. However, this is known as “withholding,” and may expose the withholding parent to legal liability because it is a breach of the visitation terms of the child custody agreement. Even in the midst of a pandemic, parents are required to adhere to the terms of their child custody agreements. While a child’s physical health is unquestioningly critical to their wellbeing, denying a child their right to see their mother or father can take a significant toll on the child’s emotional health. 

Contact an Alpharetta Child Custody Attorney at Our Firm Today

If you have concerns about the COVID-19 pandemic’s effects on your child custody or visitation arrangements, you should consider speaking to an attorney to discuss your options. For more information, please contact an Alpharetta child custody attorney at Hait & Kuhn by using our online form or calling us at either of our metro Atlanta locations: Alpharetta (770-517-0045) or Woodstock (678-888-0198).