Custody & Placement During COVID-19

Custody and Placement Duringn the Time of COVID-19

At Balisle Family Law Legal Counsel, S.C., several clients are concerned that their children will be exposed to the COVID-19 virus at the other parent’s home. Sometimes it is because the other parent, or a person living with them, is a front-line health care provider or sometimes it is because of recent travel to areas with a high risk of infection. The question asked is: Can I withhold their placement/visitation of our children without being found in contempt for violating our custody and placement order?

It is a novel virus, and a novel situation. We are aware of one Wisconsin circuit court’s ruling (as of March 23, 2020) that has considered this. That court required the regular placement schedule be followed. We expect more decisions on this issue. However, a circuit court ruling in one case, does not bind another circuit court judge in another case, even if the facts are similar. This means that we may see different judges taking different approaches to this issue, and making different decisions.

The issue for the courts will be: should the parent withholding placement/ visitation be found in contempt because they knowingly violated the current Order based on a fear their children or they themselves could become infected? While a circuit court can consider the reason a parent withholds placement or visitation, there are no current guidelines for when is reasonable to withhold custody or visitation because of health reasons. For example, if the other parent is a nurse in a hospital treating COVID-19 patients, should they be required to quarantine alone and have their children stay with the other parent? While a quick answer may be “yes,” what if both parents are front line health care providers? You can see that each case will present its own unique facts.

It is likely that any placement time lost will be made up at another time.

We have found help with these cases in the local public health office, which has been willing to give their initial impression of the level of risk, the children’s pediatricians, who know of any potential health risks of the particular children, as well as the physicians for the parent who wants to withhold placement because of their own risk factors; they don’t want their children exposed and then coming home to them and spreading the virus. It is important to understand that public health officials and doctors themselves are learning more and more about COVID-19 each day and their knowledge and assessment of risks will likely continue to evolve.

In this time of public emergency, the best approach is for the parents to put the safety of the children and both households first, and make a decision accordingly. If it is safe, parents should communicate their concerns with each other and consider the options available to minimize risk or adjust the schedule. This is temporary, not permanent. Some families are fortunate to have separate areas of their homes where an exposed parent could isolate while the children and another adult stay in the other part of the house.

We have been helping clients through this time, and hope all parents and attorneys representing them will be cooperative and considerate of the health of the children and other parent in working out these situations.

Please call us at 608-765-1001 if you need representation for your custody and placement issues during this challenging time.

Families where the children live in two households, may refer to guidelines provided by the American Academy of Matrimonial Lawyers which to help them get make decisions. The Academy is a membership organization of attorneys who focus their practice on family law, and who have passed a rigorous exam and membership requirements. Attorney Linda Balisle has been a member since 1992 and is the former Wisconsin Chapter president.