“Should my custody order be temporarily adjusted during the COVID-19 pandemic?”
I practice law in the state of Arkansas. Unless you live there, I cannot inform you as to the specific laws of your state, but I can give you some general observations on family law issues and how they are affected by the COVID-19 pandemic, based on the jurisdiction where I practice.
The COVID-19 situation is one that is novel and progressing daily. Whether you should change your current custody or visitation order depends on the facts of your situation.
Generally speaking, your current custody and visitation order is going to continue to apply during this situation. If the other party is withholding the minor children from you or if the other parent is attempting to alter the current custody or visitation order, then that may be a contempt issue.
If you want to change the current custody or visitation order, then Arkansas requires there to be a “material change in circumstances” for there to be any modification or change to the order. A “material change of circumstances” means that you must show that there is a new event, circumstance, or fact going on now that was not in effect when the court granted the last order. You must also show the court that what you are asking for—whatever the change in custody or visitation is that you are asking for—is in the best interest of the minor child. The burden will be on you to show this since you are filing the petition. In modification cases, the focus for the court will usually be what is going on in the other party’s household. The court also usually focuses on safety or health and well-being concerns of the minor children.
Therefore, if you believe that the other parent’s actions as it relates to COVID-19 are causing some type of harm, safety, or well-being concern to the minor child then you may want to file a modification action. Some examples could be if the other parent is not following proper traveling restrictions with the minor children, such as is taking the children out of the state, which you believe may be putting their safety and health in jeopardy; the other parent or someone the other parent lives with could have been exposed to COVID-19 and the children are in that environment; not following shelter-in-place guidelines which is putting the children’s health in jeopardy etc. All of the aforementioned will want to be considered if the children have special health considerations which put them in a higher-risk category.
Because this is a novel situation that many people, including the courts are dealing with, these are going to be very fact-specific situations in which you will want to discuss in depth with an attorney.
Lastly, you will want to keep in mind that many courts statewide are closed for several weeks and that date could be extended. Some courts will still have in-person or virtual hearings for emergency cases only. Whether your matter will be considered an emergency by the courts will, again, will be very fact specific. Even though the courts are closed or working at a limited capacity; however, you can still file motions with the courts, and in many situations, it may be in your best interest to get your case started as soon as possible.
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Dan Pearce is an Online Editor for Lexicon, focusing on subjects related to the legal services of customers, Cordell & Cordell and Cordell Planning Partners. He has written countless pieces on MensDivorce.com, detailing the plight of men and fathers going through the divorce experience, as well as the issues seniors and their families experience throughout the estate planning journey on ElderCareLaw.com. Mr. Pearce has managed websites and helped create content, such as the Men’s Divorce Newsletter and the YouTube series, “Men’s Divorce Countdown.” He also has been a contributor on both the Men’s Divorce Podcast and ElderTalk with TuckerAllen.
Mr. Pearce assisted in fostering a Cordell Planning Partners practice area specific for Veterans, as they deal with the intricacies of their benefits while planning for the future. He also helped create the Cordell Planning Partners Resource Guide and the Cordell Planning Partners Guide to Alternative Residence Options, specific for seniors with questions regarding their needs and living arrangements.