Child Custody Considerations in a Covid-19 Era and Thoughts for the Futhre

• Publication year: 2021

Child Custody Considerations in a COVID-19 Era and Thoughts for the Futhre

by Tom S. Tanimoto

I. Introduction

Since early 2020, the medical and scientific community has, and will continue to be focused on preventing, treating and ultimately eradicating COVID-19 which is caused by a very contagious¹ virus termed SARS-CoV-2². Meanwhile, mankind has undergone worldwide imposed mandates such as mask wearing and social distancing, amidst varying and pro-phylactically enacted country, state and municipal lockdowns which have undoubtedly, adversely affected businesses, and thereby the economy.

Across our country, on a more localized familial level, the concerns and fears of COVID-19 transmission and infection have likely engendered friction between separated, divorced or divorcing parents as to the matter of child-rearing. Eventually, such unresolved tension disintegrates into a contested custody case where parents seek court orders either enforcing visitation that has been unilaterally curtailed, or drastically reducing, if not eliminating such visitation. While some cases are appropriately grounded in a protective basis, others find their genesis in pre-textual opportunism. It must be mentioned that there have been several newsworthy cases of parents losing custody for COVID-19 related reasons, such as an emergency room doctor (the order specific to that case having been later quickly stayed) or a mother who eschewed wearing a mask.³ However, based on the discussion below, it would seem that any dramatic judicial rulings would arise more as a result of a purposeful (or recklessly ignorant) conduct or omission that contravenes government directives or court orders and needlessly elevates the risk of infection (such as wholly and blatantly failing to wear masks or engaging in mass gatherings), rather than because an individual was simply doing one's job.

Whatever the motive, there are a host of reasons spurring COVID-19 custody litigation, including, but not limited to, claims of high community infection rates, excessively social parental behavior, government restrictions, quarantines, and inadequate safeguards at home.

The court in S.C. v. Y.L., 2020 N.Y. Slip Op. 50590, (N.Y Sup. Ct., May 18, 2020), set forth what is arguably a preamble to COVID-19 family law litigation. In this case, a father was unable to see his children since the COVID-19 pandemic took hold, id. at 1, and the Court proclaimed, "[p]utting COVID-19 into the equation has only added a new element of conflict, as it has in innumerable other matrimonial cases where it has impacted the ability of divorced and divorcing parents to see their children." Id. at 2 (fn. omitted). One cannot imagine a scenario where the common cold would be comparably spoken of. Simply put, COVID-19 is an illness which must be taken seriously. The Centers for Disease Control ("CDC") has stated that "[w]hile children infected with SARS-CoV-2 are less likely to develop severe illness compared with adults, children are still at risk of developing severe illness and complications from COVID-19 . . . . Similar to adults, children with severe

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COVID-19 may develop respiratory failure, myocarditis, shock, acute renal failure, coagulopathy, and multi-organ system failure."⁴ Nonetheless, as will be discussed herein, "[t]he COVID-19 pandemic is not generally a reason to deny parenting time."⁵

Given the state of current events, a look at COVID-19 in the realm of child custody seems apropos, and although COVID-19 per se is a new disease in the world of medicine and the law, it is (perchance) surprisingly, not a new concept where a communicable and dangerous ailment is a factor in child custody/visitation cases. We will therefore present some salient thoughts pertinent to COVID-19 custody litigation by way of an analysis of relevant case law with analogous circumstances, i.e., where an infectious disease was a dispositive factor or consideration in various situations. In section II, the Hawaii benchmark test for child custody/visitation cases will be set forth, namely, what is in a child's best interest? Section III covers various potential scenarios underlying custody disputes, namely, the minimization of infection to a child from either the general public, or from an infected parent, as well as the case where a child is infected. It should be noted that although the State of Hawaii, given its isolated location in the middle of the Pacific Ocean, has a lower number of confirmed COVID-19 cases compared to many other states, the analysis would likely not differ, as the cases will reveal.⁶ Section IV discusses guidance for custody litigation pertaining to the propriety of administering COVID-19 vaccinations to minor children. Section V touches on litigation arising out of future pandemics, should they occur. Finally, Section VI presents closing thoughts.

II. Best Interests of the Child under Hawaii Law

Consideration of the best interests of the child is tantamount to a categorical imperative when a child custody/visitation matter is at hand. Haw. Rev. Stat. § 571-46(b) sets forth sixteen (16) factors which the court "shall consider, but not

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be limited to . . . ." Id.⁷ The factors pertinent to the analysis herein are subsections (b)(6) and (b)(8), the former pertaining to the physical health needs of the child and the latter, the safety needs of the child. The cases to be discussed, to no surprise, focus on the above points; namely, the child(ren)'s health and safety, while the judicial rulings therein countenance the acquisition of all pertinent information, leading to court-ordered implementation of safeguards when necessary, often in conjunction with government mandates. Furthermore, the decisions thematically caution parents to refrain from emotionalisms.

III. Various Scenarios

A. Minimizing the Risk of COVID-19 Infection to a Child

Most cases will undoubtedly involve the situation where parents understandably seek to minimize the risk of COVID-19 infection to their child(ren). In S.C. v. Y.L., a parent was unable to see his children due at least in part to the COVID-19 pandemic, and in determining a remedy, the court issued an interim order to "have social workers from Comprehensive Family Services, an independent family support agency, physically present to supervise the mandated transfers of the children from one parent to the other. [The court further stated that this] will serve to facilitate the transfer process, help allay any concerns that either child may have about going to plaintiff's home - especially any COVID-19 related fears that the Defendant may have stoked - and allow the issuance of firsthand objective reports that will assist [the court] in making further determinations." Id. at 2 (fn. omitted). This is a patient approach and seeks to fact-find while instituting safeguards.

A similar analysis and decision is embodied in Jennifer R. v. Lauren B., 2020 N.Y Slip Opinion 20094 (N.Y. Fam. Ct., April 22, 2020), where one parent claimed that the minor child would best be served by staying in New Jersey and not with the other parent who lived in New York due to a lower risk of infection in the former state, id. at 3, but according to the court, said claimant failed to "cite anything specific [the other party did] to place the child at risk of exposure to Coronavirus or otherwise." Id. at 4. Their dispute notwithstanding, the parties were able to communicate well and formulated a protocol whereby they transported the child by car and reduced the frequency of visitation exchanges with the objective of lowering...