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Effect of Coronavirus on Child Custody and Visitation Orders

Sun 29th Mar, 2020 Arizona Child Custody Laws

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A lot of parents have been asking about the effect of the coronavirus on child custody and parenting time orders in Arizona. So, we want to talk to you about what we are hearing and what you can do if you have concerns about sending your child to spend parenting time or visitation with the other parent.

First, you must understand that a court order providing for the custody of a child or providing for parenting time or visitation are enforceable court orders. Those orders can be enforced in family law court through contempt proceedings or criminal court through a misdemeanor crime of “interference with judicial proceedings.”

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What Happens if a Parent Denies Visitation or Parenting Time Due to CoronaVirus

Contempt of Court for Violating Visitation Orders Due to Coronavirus

If a parent withholds a child from the other parent in violation of a court order, the aggrieved parent can file a Petition for Contempt in the family court. The court will then schedule a hearing to determine if that parent willfully and intentionally violated the court’s visitation or parenting time orders.

If the court finds the parent willfully and intentionally violated a court’s visitation or parenting time orders during this Coronavirus pandemic, the judge could hold the person in contempt and could punish the parent by ordering them to pay the other parent’s attorney fees and could also incarcerate a parent to force his or compliance with the court’s visitation or parenting time orders.

Criminal Charge of Interference With Judicial Proceedings for Denying Visitation Due to Coronavirus Concerns

As mentioned above, a parent risks being charged and/or arrested for the crime of “Interference With Judicial Proceedings” if a parent refuses to send a child to the other parent because of concerns regarding the Coronavirus.

Police officers, however, have the discretion to charge or not charge a parent with this crime in Arizona. It is within a police officer’s discretion in Arizona to either charge a crime, arrest for a crime, or do nothing about the crime of “Interference With Judicial Proceedings”.

Emergency Motion to Suspend Parenting Time

A parent not wanting to send their child for visitation or to spend parenting time with the other parent may file an Emergency Motion to Suspend Parenting Time if that parent believes sending the child for visitation will place the child in imminent danger of serious harm. These emergency motions are ruled upon by a judge the same day they are filed.

So, the question because whether possible exposure to the Coronavirus places your child in imminent danger of serious harm. Since every child’s situation is different, the answer to this question will depend upon a myriad of factors, as well as the predisposition of the judge assigned to your case.

Balancing Harm to a Child Due to the Coronavirus With a Parent’s Right to Visit a Child

For example, it is likely a judge would grant such an emergency order suspending visitation due to the Coronavirus if your child has serious underlying health conditions, such as a compromised respiratory system, and the other parent is asking you to place the child on a plane to San Francisco or New York.

Likewise, it would be unlikely a judge would grant such an emergency order suspending parenting time due to the Coronavirus if your child is healthy and is being dropped off across town to spend time with the other parent.

Other Coronavirus Options Relating to Parenting Time and Visitation Orders

If you have concerns about sending your child for visitation or parenting time but do not believe filing an Emergency Petition to Suspend Parenting Time is the answer for you, you should try to reach out to the other parent to resolve, as much as possible, possible exposure risks to a child.

Also, parents facing the dilemma of enforcing visitation or parenting time orders during the Coronavirus outbreak should try to come to an agreement on what they should do to protect their children during this pandemic.

For example, parents might agree their child will not be put on an airplane to spend time right now with his or her child, but that parent will receive additional parenting time with the child after the Coronavirus outbreak is resolved.

This is an unprecedented time for parents and children. We strongly encourage all parents to put the interests of their children first. It is a much better solution for parents to work these problems out than running to court at this time if possible.

UPDATE #1:

Maricopa County Superior Court Guidelines on Child Custody and Parenting Time During Covid-19 Pandemic

The following guidelines regarding child custody and parenting time orders were issued by the Maricopa County Superior Court on April 2, 2020:

The family department has received a number of inquiries as to how the Governor’s Executive Order impacts existing parenting time schedules.

As a general policy, the family department has concluded that allowing children to maintain regular access to each parent is in their best interests and the transporting of children for the start and end of each block of parenting time is part of the essential business that is authorized under the Governor’s Executive Order.

While the facts of any given case shall dictate the result, it is the general view of the family department that existing parenting plan schedules remain in effect and enforceable.

There have also been inquiries as it relates to parents being on the road for the purpose of transporting children under a parenting plan.

Parents have asked whether they will be required to provide documentation if stopped by law enforcement. Pursuant to section 2e of Governor Ducey’s Executive Order, no person will be required to provide documentation to support their essential activities.

UPDATE #2:

The following guidelines regarding child custody and parenting time orders were issued by the Pima County Superior Court on April 2, 2020:

Arizona Superior Court in Pima County Family Court Guidelines for Parenting Time of Children During the COVID-19 Pandemic

Protect Children from Coronavirus

These are challenging and stressful times for everyone. During the COVID-19 pandemic, the Court knows you may be seeking additional direction as to parenting time. We have, therefore, put together a list of guidelines that may help you navigate these waters.

The goal of these guidelines is to encourage you to follow your existing parenting plan as closely as possible. Doing so will ensure a level of consistency and stability, which is in your children’s best interests.

We want to assure you, that, if needed, the Court remains available to hear essential matters, including entering new orders in emergency situations. However, the Court strongly encourages all parents to first attempt to work together to resolve any issues, even if coordinating parenting time or making adjustments to exchange locations becomes more challenging in the days and weeks to come.

If you both agree to modify your parenting plan, you are encouraged to put your agreement in writing and sign it, if possible. If both parents cannot decide on a revised parenting time plan, and one of you believes an adjustment is necessary, you may consider filing a request for temporary modification with the Court under Rule 48, ARFLP. Finally, in cases where a parent or child must self-quarantine or access is restricted, parents should permit liberal telephone or videoconference visits.

These guidelines were based upon a review of various courts’ approaches to the pandemic, and rely heavily upon the Oregon Statewide Family Law Advisory Committee (SFLAC) Recommendations for Oregon Courts: Information for Parents sharing Custody or Parenting Time of Children During the COVID-19 Pandemic.

These guidelines recognize Arizona’s declared public policy and practices of assuring minor children’s frequent and continuing contact with parents, encouraging parents to share in the rights and responsibilities of raising their children which include developing their own parenting plan within legal confines and considering the best interest of children and safety of all in developing the parenting plan. A.R.S. §§1-601, 25-403, and 25-403.02. 2 (COVID-19 Parenting Time Guidelines; Version: 04/01/2020).

Parents must comply with any existing parenting time orders unless they agree otherwise, or until the orders are modified. A parent who refuses without good cause to comply with a parenting time order is subject to legal penalties, which may include being held in contempt of court, fines, and sanctions.

A parent currently exercising parenting time/physical custody who is not entitled to it under the court-ordered parenting schedule must immediately return the children to the permitted parent.

The Court reminds parents that “[a]n order for sole legal decisionmaking does not allow the parent designated as sole legal decisionmaker to alter unilaterally a court-ordered parenting time plan.” A.R.S. §25-403.01(C). The same applies to a parent who has final decision-making authority under a legal decision-making order.

Self-help is not an acceptable course of action. If both parents cannot agree on a modified parenting time plan and one of you believes an adjustment is necessary, you may consider filing a request for temporary modification with the Court under Rule 48, ARFLP.

If there are no orders in place and unless otherwise ordered, legal parents are entitled to co-equal, but not exclusive, physical custody of children, and A.R.S. §13-1302(A)(2) forbids “either parent from hiding a child from the other.”

Denial of Parenting Time

The COVID-19 pandemic is not generally a reason to deny parenting time. Unless otherwise ordered by the Court, parents are considered fit to care for their children and make decisions regarding day-to-day aspects of parenting while children are in their care. State v. Wood, 198 Ariz. 275, 279, 8 P.3d 1189, 1193 (App. 2000). See also Gutierrez v. Fox, 242 Ariz. 259, 270, 394 P.3d 1096, 1107 (App. 2017). 3 (COVID-19 Parenting Time Guidelines; Version: 04/01/2020).

This day-to-day care includes following federal, state, and local directives regarding social distancing and safety-related measures (such as frequent handwashing).

Definition of Spring Break, Summer Break, Vacations and Holidays

While schools are closed, parenting time should continue as if the children are still attending school under the school calendar of the relevant district. ‘Spring break,’ ‘summer break/vacation,’ ‘fall break,’ and other designated breaks/holidays/vacation mean the regularly calendared breaks/holidays/vacations in the school district where the children are attending school (or would attend school if they were school-aged).

The closure of the school for public health purposes will not be considered an extension of any break/holiday/vacation period or weekend.

Positive Covid-19 Diagnosis

First and foremost, understand that self-quarantine is for the protection of all parties, especially if they are included in the group of people most adversely affected by COVID-19.

Parents should consider agreeing to modify existing orders temporarily including whether to suspend parenting time for a period of 14 days for any person who: Tests positive for COVID-19 or shares a household with someone who tests positive for COVID-19; Has been advised by governmental officials that the parent, or someone with whom the parent shares a household, has been exposed to COVID-19, and has been directed by government officials to selfquarantine; or Has traveled internationally within the last 14 days, consistent with the CDC’s Global COVID-19 Pandemic Notice.

If parenting time is temporarily suspended, the parent affected should be allowed liberal virtual contact with the children via videoconference or telephone. The Court may order that suspended parenting time be made up, when requested and when appropriate. 4 (COVID-19 Parenting Time Guidelines; Version: 04/01/2020)

Parenting Time in Public Places

If your parenting plan states that parenting time will occur in a public place, it should continue at locations permitted under the applicable government orders. See State of Arizona Executive Order 2020-18.

Public places such as parks, where people routinely touch common-contact surfaces (play equipment, picnic tables, railings) should be avoided. Outings and activities where parents and children can maintain social distancing and avoid common-contact surfaces are encouraged. o If that is not possible, parenting time should be conducted virtually, via videoconferencing or telephone.

Supervised Parenting Time

If supervised parenting time is ordered and the supervisor is unavailable for any reason, parents should work collaboratively to ensure parenting time continues to occur in a manner that promotes the children’s safety and wellbeing, such as finding an alternative supervisor.

If that is not possible, parenting time should be conducted virtually via videoconferencing or by telephone. o The primary residential parent may supervise virtual contact.

Executive and Government Orders Regarding Travel Restrictions

In Arizona, all schools are closed for the remainder of the Spring 2020 semester. Currently, there are no executive orders that limit travel for parenting time exchanges.4 4 As of April 1, 2020, there are no executive orders that limit travel for parenting time exchanges.

Governor Ducey’s Executive Order 2020-18 includes the following as an essential activity for which travel is permitted under that Order: “[e]ngaging in activities essential for the health and safety of family, household members and pets. . . .” Executive Order 2020-18, ¶4(b).

Parenting time orders provide for the best interests and essential well-being of children, and travel for exchanges facilitates those orders. 5 (COVID-19 Parenting Time Guidelines; Version: 04/01/2020).

If a government order is issued that specifically restricts travel for parenting time and exchanges, parents must comply with that order. Unless otherwise directed, parents should continue to follow their parenting plan as written.

If a government order restricts travel for parenting time exchanges, parents should work together to encourage children’s contact with both parents and keep the arrangements as normal as possible.

Exchanges of Children

During the exchange of children, parents should follow the CDC guidelines and State of Arizona Executive Order 2020-18 for limiting the spread of the virus. Parents may wish to consider the following: An alternative location for the exchange, where fewer people congregate or touch public objects may be necessary. If an exchange location is closed, the parents should choose an alternative location nearby that remains open.

For ongoing safety considerations, exchanges should occur in a neutral setting such as at a fire or police station. If the children’s exchange under the parenting plan includes air travel, parents should review the CDC travel guidelines and discuss whether ground transportation for the exchange is preferable or possible.

For supervised exchanges, parents should continue to follow the parenting plan and use the designated exchange agency or supervisor. If that is not possible, parents should work collaboratively to find an alternative exchange agency or supervisor, which can include an agreed-upon friend or family member. If that is not possible, parenting time should be conducted virtually via videoconferencing or by telephone.

Transparent Communications About Parenting Time

Unless restrained from communicating, parents are encouraged to talk honestly and openly about precautions they are taking to slow the spread of COVID-19. Parents should ensure that, unless otherwise ordered, both parents have current contact information for the children’s doctor(s). 6 (COVID-19 Parenting Time Guidelines; Version: 04/01/2020)

A parent is not permitted to deny parenting time based upon the other parent’s unwillingness to discuss precautionary measures taken, or belief that the other parent’s precautions are insufficient.

Makeup Parenting Time

If parenting time is missed due to COVID-19-related issues or government orders, parents are encouraged to work collaboratively to schedule makeup parenting time that promotes their children’s safety and wellbeing. The Court will order makeup parenting time, when appropriate.

First responders must remain available for actual emergencies and support related to the COVID-19 outbreak. Please do not call first responders for parenting-related disputes, but only in circumstances where your reasons are real, immediate, significant, and safety-related, or if you are in imminent danger.

UPDATE #3:

Judge Brutinel of the Arizona Supreme Court issued the following Administrative Order #2020-59 on April 3, 2020 from the Arizona Supreme Court:

Due to concern for the spread of COVID-19 in the general population, the Governor of the
State of Arizona has declared a statewide emergency pursuant to A.R.S. § 26-303 and in
accordance with A.R.S. § 26-301(15). Cooperation by the Judicial Branch of government being
essential to reducing the risks associated with this public health emergency.
The Arizona Judicial Branch remains open to serve the public. Nevertheless, given the
current emergency, and in the interest of protecting the public, certain limitations and changes in
the rules regarding certain notarial requirements and temporary child support order modifications
are necessary.
Therefore, pursuant to Article VI, Section 3 and 5, of the Arizona Constitution,
IT IS ORDERED that Courts may accept for filing any of the documents identified under
Rule 14(a) Rules of Family Law Procedure without notarization if they are accompanied by a
photocopy of the filer’s driver license or other government-issued identification card. The
applicant may redact a protected address from driver’s license or other government-issued
identification card.
IT IS FURTHER ORDERED that Courts may accept for filing a motion to temporarily
modify parenting time or child support under Rules 47 and 48, Rules of Family Law Procedure
without an underlying petition if the basis for temporary relief is related primarily to COVID-19

This means the Arizona Supreme Court recognizes parents may have legitimate reasons to seek modification of parenting time and child support orders filed as a result of the Covid-19 situation; albeit as a temporary modification until the current pandemic concludes.

UPDATE #4:

The Maricopa County Superior Court issues an update to child custody and parenting time guidelines due to the Coronavirus epidemic as follow:

Family Court Guidelines for Parenting Time of Children During the COVID-19 Pandemic

Protect Children from Coronavirus in Arizona.

These are challenging and stressful times for everyone. During the COVID-19 pandemic, the Superior Court in Maricopa County knows you may be seeking additional direction as to parenting time.

A workgroup of dedicated judicial officers, attorneys, administrators and family law stakeholders in Pima developed these guidelines. They were based, in part, upon a review of various courts’ approaches to the pandemic, including the Oregon Statewide Family Law Advisory Committee (SFLAC) Recommendations for Oregon Courts: Information for Parents sharing Custody or Parenting Time of Children During the COVID-19 Pandemic (available here).

These guidelines were further reviewed with counter-parts in Maricopa County, following which just a few, but important, additions were made. These guidelines are designed to help parents navigate these waters.

The guidelines should also assist lawyers in determining the best advice to provide to clients in these times of uncertainty. The goal of these guidelines is to encourage you to follow your existing parenting plan as closely as possible. Doing so will ensure a level of consistency and stability, which is in your children’s best interests.

The guidelines are adopted to assist the parents and the court, however, the facts of any given case shall dictate the result. In all cases, the court must determine the best interest of the child in resolving contested issues.

We want to assure you, that, if needed, the Court remains available to hear essential matters, including entering new orders in emergency situations. However, the Court strongly encourages all parents to first attempt to work together to resolve any issues, even if coordinating parenting time or making

These guidelines recognize Arizona’s declared public policy and practices of assuring minor children’s frequent and continuing contact with parents, encouraging parents to share in the rights and responsibilities of raising their children which include developing their own parenting plan within legal confines and considering the best interest of children and safety of all in developing the parenting plan. A.R.S. §§1-601, 25-403, and 25-403.02. 2 adjustments to exchange locations become more challenging in the days and weeks to come.

If you both agree to modify your parenting plan, you are encouraged to put your agreement in writing and sign it, if possible. If both parents cannot decide on a revised parenting time plan, and one of you believes an adjustment is necessary, you may consider filing a request for temporary modification with the Court under Rule 48, ARFLP.

Finally, in cases where a parent or child must self-quarantine or access is restricted, parents should permit liberal telephone or videoconference visits.

Guidelines Parenting Time Orders

Parents must comply with any existing parenting time orders unless they agree otherwise, or until the orders are modified. A parent who refuses without good cause to comply with a parenting time order is subject to legal penalties, which may include being held in contempt of court, fines, and sanctions.

A parent currently exercising parenting time/physical custody who is not entitled to it under the court-ordered parenting schedule must immediately return the children to the permitted parent.

The Court reminds parents that “[a]n order for sole legal decisionmaking does not allow the parent designated as sole legal decisionmaker to alter unilaterally a court-ordered parenting time plan.” A.R.S. §25-403.01(C).

The same applies to a parent who has final decision-making authority under a legal decision-making order. Self-help is not an acceptable course of action. If both parents cannot agree on a modified parenting time plan and one of you believes an adjustment is necessary, be aware that Chief Justice Bruntinel of the Arizona Supreme Court issued Administrative Order 2020-59 on April 3, 2020.

This order allows a party to seek orders for temporary relief related to or arising from COVID-19 issues without also having to file an underlying petition to modify the long term parenting plan or child support orders. In such cases, you may consider filing a request for temporary modification with the Court under Rule 48, ARFLP.

If there are no orders in place and unless otherwise ordered, legal parents are entitled to co-equal, but not exclusive, physical custody of children, and A.R.S. §13-1302(A)(2) forbids “either parent from hiding a child from the other.”

Third-party visitation orders, including grandparent visitation, shall remain in effect unless modified by the court consistent with these guidelines. All parties are encouraged to confer before seeking court intervention, to achieve the best interest of the child.

Denial of Parenting Time

The COVID-19 pandemic is not generally a reason to deny parenting time. Unless otherwise ordered by the Court, parents are considered fit to care for their children and make decisions regarding day-to-day aspects of parenting while children are in their care.

This day-to-day care includes following federal, state, and local directives regarding social distancing and safety-related measures (such as frequent handwashing).

Definition of Spring Break, Summer Break/Vacation or Holidays

While schools are closed, parenting time should continue as if the children are still attending school under the school calendar of the relevant district. ‘Spring break,’ ‘summer break/vacation,’ ‘fall break,’ and other designated breaks/holidays/vacation mean the regularly calendared breaks/holidays/vacations in the school district where the children are attending school (or would attend school if they were school-aged).

The closure of the school for public health purposes will not be considered an extension of any break/holiday/vacation period or weekend. State v. Wood, 198 Ariz. 275, 279, 8 P.3d 1189, 1193 (App. 2000). See also Gutierrez v. Fox, 242 Ariz. 259, 270, 394 P.3d 1096, 1107 (App. 2017).

Positive COVID-19 Diagnosis

First and foremost, understand that self-quarantine is for the protection of all parties, especially if they are included in the group of people most adversely affected by COVID-19. Parents should consider agreeing to modify existing orders temporarily including whether to suspend parenting time for a period of 14 days for any person who:

• Tests positive for COVID-19 or shares a household with someone who tests positive for COVID-19;

• Has been advised by governmental officials that the parent, or someone with whom the parent shares a household, has been exposed to COVID-19, and has been directed by government officials to self-quarantine; or

• Has traveled internationally within the last 14 days, consistent with the CDC’s Global COVID-19 Pandemic Notice.

If parenting time is temporarily suspended, the parent affected should be allowed liberal virtual contact with the children via videoconference or telephone. The Court may order that suspended parenting time be made up, when requested and when appropriate.

Parenting Time in Public Places

If your parenting plan states that parenting time will occur in a public place, it should continue at locations permitted under the applicable government orders. See State of Arizona Executive Order 2020-18.

Public places such as parks, where people routinely touch common-contact surfaces (play equipment, picnic tables, railings) should be avoided.

Outings and activities where parents and children can maintain social distancing and avoid common-contact surfaces are encouraged.

If that is not possible, parenting time should be conducted virtually, via videoconferencing or telephone.

Supervised Parenting Time

If supervised parenting time is ordered and the supervisor is unavailable for any reason, parents should work collaboratively to ensure parenting time continues to occur in a manner that promotes the children’s safety and wellbeing, such as finding an alternative supervisor.

If that is not possible, parenting time should be conducted virtually via videoconferencing or by telephone. The primary residential parent may supervise virtual contact.

Executive/Government Orders on Travel Restrictions

In Arizona, all schools are closed for the remainder of the Spring 2020 semester. As of April 1, 2020, there are no executive orders that limit travel for parenting time exchanges. Governor Ducey’s Executive Order 2020-18 includes the following as an essential activity for which travel is permitted under that Order: “[e]ngaging in activities essential for the health and safety of family, household members and pets. . . .” Executive Order 2020-18, ¶4(b).

Parenting time orders provide for the best interests and essential well-being of children, and travel for exchanges facilitates those orders. Parents being on the road for the purpose of transporting children under a parenting plan does not violate Governor Ducey’s order.

Pursuant to section 2e of Governor Ducey’s Executive Order, no person will be required to provide documentation to support their essential activities. If a government order is issued that specifically restricts travel for parenting time and exchanges, parents must comply with that order.

Unless otherwise directed, parents should continue to follow their parenting plan as written. If a government order restricts travel for parenting time exchanges, parents should work together to encourage children’s contact with both parents and keep the arrangements as normal as possible. 6

Exchanges

During the exchange of children, parents should follow the CDC guidelines and State of Arizona Executive Order 2020-18 for limiting the spread of the virus. Parents may wish to consider the following:

• An alternative location for the exchange, where fewer people congregate or touch public objects may be necessary.

• If an exchange location is closed, the parents should choose an alternative location nearby that remains open.

• For ongoing safety considerations, exchanges should occur in a neutral setting such as at a fire or police station.

If the children’s exchange under the parenting plan includes long-distance or air travel, parents should review the CDC travel guidelines and discuss whether ground transportation for the exchange is preferable or possible.

If the parenting plan includes long-distance parenting time to be exercised at a location that is disproportionately impacted by the COVID-19 virus, the parents are encouraged to confer to determine alternative options. If the parents cannot agree, the parties shall seek direction from the court.

For supervised exchanges, parents should continue to follow the parenting plan and use the designated exchange agency or supervisor. If that is not possible, parents should work collaboratively to find an alternative exchange agency or supervisor, which can include an agreed-upon friend or family member.

If that is not possible, parenting time should be conducted virtually via videoconferencing or by telephone.

Transparency

Unless restrained from communicating, parents are encouraged to talk honestly and openly about precautions they are taking to slow the spread of COVID-19. Parents should ensure that, unless otherwise ordered, both parents have current contact information for the children’s doctor(s).

A parent is not permitted to deny parenting time based upon the other parent’s unwillingness to discuss precautionary measures taken, or belief that the other parent’s precautions are insufficient.

Makeup Parenting Time

If parenting time is missed due to COVID-19-related issues or government orders, parents are encouraged to work collaboratively to schedule makeup parenting time that promotes their children’s safety and wellbeing.

Makeup parenting time during these extraordinary times may not be logistically possible. A parent may seek and the Court may order makeup parenting time when appropriate.

First responders must remain available for actual emergencies and support related to the COVID-19 outbreak. Please do not call first responders for parenting-related disputes, but only in circumstances where your reasons are real, immediate, significant, and safety-related, or if you or a child are in imminent danger.

Additional Resources

General recommendations and guidelines published by the American Academy of Matrimonial Lawyers (AAML).

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