Child custody rights during COVID-19

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What do you do in a contested proceeding when someone says, “the kids are in lockdown and I am not sending the children”?

The Courts have made it very clear that they expect their Orders will be complied with notwithstanding the current concerns around COVID-19.

That is, as long as there are no safety issues, children should continue to spend time with each of their parents as ordered by the Court.

It is important to remember that the Courts make Orders that are deemed to be in the children’s best interest whether that be by virtue of a Judge making a determination after a hearing, in which findings are made, or, because the parents have reached a mutual consensus that they also consider this to be in the best interest of the children.

Accordingly, it stands to reason that unless there is a particular or unique issue that relates to a family or child, those arrangements should continue to the maximum extent possible.

There will be circumstances when it is difficult to comply with the Orders, and in those circumstances the Court expects the parties will attempt to negotiate a variation, and it is likely that variation would be a temporary variation to take into account the circumstances that make it difficult to comply.

Where a child is withheld without reasonable excuse, a parent could make an Application for an urgent Recovery Order that sees the child returning to the parent’s home and continuing the ordered arrangements. These Applications are now being heard by phone and can be determined upon the Affidavit evidence filed by the parties.

Where there is interstate travel required, this also may require that the parties work cooperatively to make alternative arrangements. The travel can still occur across borders, albeit that it may be different to the way in which it was previously experienced (e.g. by flight which is now increasingly unlikely to continue as before).

The government has issued specific guidelines to the effect that where Orders exist, the restrictions to travel across borders do not apply and, parties are permitted to travel in order to comply with Orders, with specific mention about Family Law Orders.

Of course, if your child is experiencing symptoms that are consistent with contracting COVID-19, that it is important to use your decision-making capacity to contact medical professionals in the first instance. Parenting arrangements (and disputes) should never surpass the responsibility of a parent to provide for urgent medical attention. If the child is well enough to travel, then the child is well enough to travel from house to house and again, Orders need to be complied with to that effect.

But if the child is not well enough to travel from house to house, common sense should prevail and it would be important that medical attention is sought, which provides medical opinion as to why the child is not safe to travel given their symptoms.

It is important to note that there is across the world proposition for the concept that if you cannot comply technically with every aspect of your Orders, you should still be complying in the spirit of the Order and that means making alternate arrangements where possible.

With so much unknown and uncertain in the world, one of the best things you can provide for your children is the stability that they can continue. Stability of schooling may have been disrupted, but stability in relation to the parenting provided by each of their parents can be maintained where it is safe to do so.

If you require legal advice in relation to the particular circumstances of your case, please contact Liz Catton or Angela Tondelstrand for an initial free consultation.

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