Novel Circumstances: Coronavirus and Family Law.

March 17, 2020 • By Inna Materese

In the last few weeks, people all over Pennsylvania –  not to mention the country and the world – have confronted a medical emergency unlike any we have previously seen. As a result of the proliferation of COVID-19, a highly-infectious and fatal coronavirus, large gatherings of all kinds have been canceled in an effort to contain the spread of the illness. Like several other states and private entities, the Commonwealth of Pennsylvania has mandated that all schools close for a period of two weeks and areas where large gatherings may occur suspend operations.

These austere measures aim to contain the infection and ultimately eradicate it through quarantines and social distancing. However, this novel virus not only presents novel social and work-life circumstances but forces family law practitioners and the clients they serve into truly unique predicaments. How does one carry on business as usual, custody as usual, family as usual, when the goal is isolation? Furthermore, should we? Consider the following issues:

For some of the litigants we serve, the ability to leave their home is imperative to their well-being or even survival. A victim of domestic abuse in the time of a pandemic quarantine must decide whether to stay at home with their abuser for a prolonged period of time or possibly risk infection elsewhere. This same victim may seek, and obtain, a Protection from Abuse Order from the court, which may exclude the defendant from the home they formerly shared. While often lifesaving for the victim, his or her decision to seek appropriate relief from the court system creates the kind of movement of individuals that quarantine protocols are attempting to avoid.

Consider children living in high conflict or unsafe circumstances. In a less tumultuous time, one parent may petition the court for custody relief to remove the child from potentially harmful situations. In a corona-scare world, our judges may have to decide whether moving a child from one home to another potentially exposes that child (or the individuals in the home to which he or she would move) to a contagion.

In typical custody circumstances, a child may move from one parent’s home to another quite frequently. In fact, it is not uncommon for parents to exchange custody every couple of days. Should this movement continue during a public health quarantine? What if one parent isolates entirely while the other permits visits to his/her home by other extended family members? What if the very nature of a custodial exchange is interpersonal (such as where custody of a very young child is exchanged) and requires parents to be in close proximity several minutes?

With schools closed, many parents are forced to implement home-schooling activities and/or programs. What are the parameters to ensuring that the child continues his or her education in each home?

Consider the parent who had a long-scheduled, pre-planned vacation with the child, either within the US or abroad to a country with few known cases of coronavirus. Should that parent be permitted to still travel with the child? If the other parent believes the trip should not occur, is this situation appropriate for emergency relief from the courts?

Parents can have trouble making joint medical decisions for their children in everyday situations. How do we grapple with a dispute over medical decisions in response to a virus that is still unknown in many respects? Who decides if a child’s symptoms warrant COVID-19 testing and quarantine? What happens to the child if one or both parents test positive and must seek medical attention? What if the fear of coronavirus exposure is used as a tool to defy a custody order? It’s not difficult to imagine (though certainly highly inappropriate) a parent using the specter of coronavirus to “quarantine” a child in his or her home for 14 days.

These are just a few of the issues we are likely to encounter as families struggle to adjust to the emergency circumstances in which we find ourselves. Family law litigants and their attorneys should attempt to anticipate and openly discuss any issues that may arise.