COVID and Custody F&P Frequently Asked Questions

This article is being written to aid parents during the Coronavirus pandemic who have encountered issues in their child custody, parenting time, and visitation. This article is not legal advice and you should contact one of our Family Law Attorneys at Farrell & Perrault who can provide you with sound legal advice in an effective manner that is tailored to your unique set of facts. We provide free phone consultations and are readily available to act in any emergency situation that you may find yourself in at this time. Although the doors of Farrell & Perrault are currently closed, our staff and attorneys are working remotely. We have easily transitioned to comply with the Governor’s Work From Home Order and have been able to continue the quality of our representation to include representing our client’s in Court for hearings deemed “essential” at this time.

As all parents are at this time, I’m sure you are concerned about the spread of the Coronavirus in the community and want to protect your children at all costs from contracting the virus or even becoming infected and spreading it to other vulnerable family members in your home. But having a timesharing or visitation schedule with your co-parent, you also have the added pressure and anxiety of worrying about your children while they are away from you in your home. You don’t have control over what happens in that household and don’t know what to do.

Are they taking precautions and staying at home? Are they social distancing? Do they wear masks when they go for walks? Is there an essential worker in the home who is on the front lines every day that has contact with my children? Can my child travel to another island for visitation right now? Do I have to follow our visitation plan if I think my kids are at risk? Our law firm has been receiving many calls from former clients, current clients, and potential clients asking urgent questions regarding custody during this unprecedented time.

We have put together some of these Frequently Asked Questions about Coronavirus and Custody. These questions and answers are for informational purposes only. This is not legal advice. Contact our law firm at 535-8468 to schedule a same day free telephone consultation with one of our Family Law attorneys to discuss your unique family custody situation.

Frequently Asked Questions

Question: Can a parent withhold a child due to the Coronavirus despite a court custody order?

Answer: A court order remains in full force and effect despite the current Coronavirus pandemic. A violation of a court order is considered Contempt of Court. Contempt of Court is punishable as a criminal offense or a civil fine.

Before you make a unilateral decision and try to change a visitation or timesharing schedule on your own before agreement with the other parent or a court order, you should consider what may occur in the future as a result of your violation. You need to consider the possibility that the police may be called to enforce the visitation per court order. Police involvement is never a good thing especially when your children may be present to witness the police intervention. The Courts will also take into consideration whether a party used the Coronavirus pandemic as a tool to block the other parent from exercising their court ordered visitation. If this is a finding made by the court, the court will issue tough sanctions to punish the parent who blocked the visitation.

The parties should consider working together to come up with a solution before ]any unilateral decisions are made to change an ordered visitation or timesharing schedule. If the parties are unable to come to an agreement together and before acting unilaterally, you should contact a Family Law Attorney at Farrell & Perrault by calling 535-8468. Same day phone consultations are available for emergency situations such as these to help guide you with sound legal advice tailored to your unique familial situation.

Question: What can I do if the other parent withholds my child from me citing Coronavirus as the reason?

Answer: There are a number of options available to you. First, you can try to contact the other parent to receive information on why they are unilaterally blocking the visitation. Try to be understanding to their reasons why, they may have a good reason and you may have to be flexible by rescheduling your visitation to another time after the pandemic clears. If you are unable to communicate with the other parent, you can call the Honolulu Police Department to enforce the visitation. This can only be done if you have a clear certified court order stating your visitation or timesharing schedule that they can enforce. Consider the effects that police intervention may have on the child if they are present when the police respond. Third, the parent can seek some type of immediate court intervention to enforce the visitation or timesharing schedule. To do so, it is recommended that you contact a Family Law Attorney to first contact the other parent or the other parent’s attorney before filing a motion with the court. There are legal intervention options, but a Family Law Attorney should be contacted to advise what option should be used that is specific to you familial circumstances.

Question: How should parents treat Spring Break, holidays, vacations and Summer breaks now that children are attending virtual school from home?

Answer: Hawaii Department of Education has announced that they will not re-open the Hawaii public schools until there have been four weeks of no new coronavirus cases in the state. Children are now attending school with a virtual curriculum that should be followed within a parent’s home. The current timesharing and visitation order is still in full force and effect and shall be followed. Look at your child’s school schedule for clarification on when the school’s curriculum started again after Spring Break and when it will end for Summer Break. You can do the same for state and Federal holidays. Everything is unknown and up in the air at this time. The best you can do is receive information from your child’s school on their virtual curriculum and school break schedule. This can be tough to decipher and your ex may still not see eye to eye with your understanding. You should contact a Family Law Attorney to help you decipher your child’s schedule, your current visitation or timesharing order and to contact the other parent or their attorney. Court intervention may be available, but you should seek legal advice on what option is best for you and your family.

Question: What if the other parent has been confirmed to have Coronavirus or a member of their household has been confirmed to have been infected?

Answer: This is a tough question. You must first contact the other parent to discuss the situation to see if you can come to an agreement on what is best for your children. If you are not able to come to an agreement, immediate court intervention may be available to you. You should contact a Family Law Attorney who can discuss the specific facts of your case to take immediate action for you in Family Court.

Question: My ex lives in Kailua-Kona and I live in Hilo. My ex is supposed to have the kids this weekend for his alternate weekend visitation at his home in Kailua-Kona. There is a COVID cluster in Kailua-Kona. I don’t want my kids going anywhere near there. Can I refuse to drop them off for the visit?

Answer: First you should try to contact your ex and express your concerns. Perhaps you can come up with a solution where the kids will have alternative visitation. Could your ex come and stay in Hilo with the kids? Can you re-schedule this visitation for a later date giving allowing the other parent to exercise their makeup visitation when the cluster clears?

If you are unable to come to a solution with your ex, you may be tempted to completely disregard the current court order awarding your ex their weekend visitation and to just keep them with you. Before doing so, consider that the Family Court takes violations of court orders very seriously and sanctions (punishment) could be issued against you for making this unilateral decision to cancel visitation. This is considered Contempt of Court and can be punishable by charging the person in contempt with a criminal charge or even a civil fine for violating the court order. Furthermore, your ex could contact the police department to enforce the visitation order. If your ex does so, you should consider the impact of the police knocking on your door looking for the children while they are present.

If you want to take immediate action halt the visitation, you should contact an attorney to file an immediate motion in court to preserve your request to halt the visitation. An attorney will go over the specific facts of your case (i.e. if your child has a compromised immune system or if your ex has recently traveled to China) and will advise you accordingly. An attorney can also contact your ex or your ex’s attorney to attempt to re-negotiate the visitation.

Question: Do I have to continue to bring my child to Court ordered Supervised Visitation?

Answer: At this time, all in person supervised visitation at Parents and Children Together Hawaii (P.A.C.T.) have been halted and converted to videoconference supervised visitation. Contact P.A.C.T. on their new policies regarding videoconference supervised visitation and adhere to their new procedures instead of completely cancelling the supervised visitation. If an outside professional supervisor is being hired to supervise visitation, contact the supervisor to get details on where the visitation is to take place, who will be present, and the precautions that will be taken. If you are still unsure of continuing with the professional supervised visit, contact a Family Law Attorney to discuss your particular circumstances. If you have another individual supervising visitation outside of P.A.C.T. and who is not a professional supervisor, contact a Family Law Attorney to see if this visitation is appropriate and if your ex or their attorney needs to be contacted to discuss the visitation. It is encouraged the visitation still occur and the courts will be pleased to see your eagerness to continue visitation during these circumstances. If all else fails, set up a FaceTime or videoconference visit in lieu of the in person supervised visitation.

Question: My ex has an upcoming visitation on another island or on the mainland. Do I have to put my child on the airplane and unnecessarily expose my child to Coronavirus for that visitation? If there is a 14-day quarantine required, do I have to send my child even though my child will have to quarantine for 14 days while there? What if the visitation is for less than 14 days?

Answer: Another tough question. The answer to this will depend on the facts of your case and what is currently going on in the locale of where you are and where your ex is and the airports that the child will be traveling through. Again, if there is a valid court order awarding your ex visitation, that order is still in full force and effect. Even though the other parent is on another island or on the mainland, they can still contact the police to enforce the visitation or timesharing order. You should consider how police intervention will affect your children if they are present when the police respond. You should first discuss any safety concerns that you have with your ex and see if you can come to an agreement on how the visitation shall occur. Can you both agree on your ex travelling to you and exercising their visitation so that the child does not have to travel on the airplane? Can you re-schedule the visitation to another date where it is safe to travel?

If the travel is inter-island, you should consider that the travel is for a short plane ride and the airplanes are not flying at full capacity at this time. If your ex can safely transport your child, then you should discuss all precautions that will be taken during travel.

Currently, there is a mandated 14-day quarantine for all individuals traveling inter-island and those that arrive from the mainland. It is possible for your ex to quarantine in their home with the child, this would allow more time to bond during the visitation. If the visitation is less than 14 days, then the child would be quarantined the whole time. It should be discussed if the child should remain for the full 14 days instead of the child returning in the middle of the 14-day quarantine. Coming up with a flexible resolution will be appreciated by the courts.

If you cannot come to an agreement with your ex on off-island visitation, then you should contact a Family Law Attorney to discuss your options and possible court intervention. Once the courts re-open, the courts will be privy to all actions taken during the shutdown and will take into consideration all efforts taken to allow the visitation to occur. On the flipside, the courts will also take into consideration if any parents unnecessarily put their children in danger. You should speak with an attorney to discuss the specific facts of your situation and family to determine what the best options are for you.

Question: What types of cases and/or hearings are considered “essential” in Family Court?

Answer: Per Hawaii Chief Justice Recktenwald’s Order, filed March 16, 2020, Hawaii Courts are closed for all non-essential hearings until April 30, 2020. Hearings are still being held on the following “essential” cases:

  • Temporary Restraining Orders (“TROs”)

  • Hale Hoomalu Juvenile Correction Facility and Home Maluhia (shelter) hearings

  • Emergency Guardianships

  • Child Welfare Services Cases, including temporary foster custody and motions when a child is removed from family supervision to foster custody, but excluding trials.

  • Any hearings that the Court may deem essential on a case by case basis.

The bulk of the hearings still occurring within our practice is in TRO court. It is possible to request telephone appearances for hearings that have been set that are not trials or evidentiary hearings. If your case is set for a trial or an evidentiary hearing, you must appear in court. Although we have yet to hear of a special set case deemed essential that is not on the above essential list, we feel that the court may deem some special COVID related imminent circumstances as essential and may set the Motion for an immediate hearing before April 30, 2020. If you want immediate relief, contact a Family Law Attorney to advise on how to go about filing an emergency Motion with the court to make this request.

All Child Support Enforcement (“CSEA”) hearings have been deemed non-essential and have been re-set to a further hearing date after April 30, 2020. You should contact CSEA to find out when they can schedule your hearing or your new hearing date if re-scheduled from an earlier date.

We are ready to help in this unprecedented time. The Hawaii Family Court system can be hard to navigate by yourself without proper legal representation. Contact Farrell & Perrault at 535-8468 for your free same day telephone consultation for legal advice specific to your familial situation and to come up with a strategy that is best for you and your family. If you have an emergency situation, it is best to hire a legal professional to make sure it is heard as soon as possible in the Family Court.