Co-Parenting During Lockdown: COVID-19 and Child Custody Cases Before the Vaccine. (A Project of the New York Law School Family Law Quarterly Editors)

Abstract

This Article looks back at child custody disputes from the early days of the COVID-19 pandemic in the United States, when there were no vaccines available to limit the spread or impact of the disease and much of the country was in “lockdown.” Beginning in March 2020, most state governments issued some form of “stay-at-home” orders with the goal of protecting public health by limiting the spread of the virus. Restrictions on travel as well as concerns about exposure to the disease impacted co-parenting arrangements for parents who shared custody or visitation of their children while maintaining separate households. Some parents went to court with emergency applications to enforce or modify custody and visitation arrangements based on pandemic-related disputes. Judges considered arguments that the pandemic itself warranted suspending a visitation schedule; that children should not travel or be exposed to “hotspot” jurisdictions; that COVID-19 testing or quarantine protocols should be followed; and that one parent’s noncompliance with COVID-19 protocols put a child at risk of infection.

In resolving these disputes, courts recognized the challenges of the pandemic and the importance of protecting children’s health, while also emphasizing the importance of continuity and ongoing relationships with parents for children’s emotional health. In addition, some courts specifically ordered parents to comply with public health guidance. While no vaccine was available at the time of these decisions, some orders specifically mentioned masks, social distancing, hand-washing, and compliance with government protocols generally. Courts have sought to balance children’s needs for time with separated parents; and safety concerns raised by the circumstances of the pandemic, the health needs of particular children and families, or the parties’ own conduct. For so long as the pandemic continues, these considerations may continue to be weighed by courts in determining the best interests of the child.

This Article was a joint project of the New York Law School editorial staff for the Family Law Quarterly (published by the Family Law Section of the American Bar Association). Contributors include Erin Peake '21, Aliyah Polner '21, Mathew Fontanez '22, April Pacis '22, other members of the student editorial staff, and Professor Lisa Grumet.

Keywords: children, custody, family law, COVID-19, pandemic, best interests of the child, vaccine