SAN JOSE – Like the counties in the Bay Area gradually reopened their economies amid the novel coronavirus pandemicResidents have had to navigate a maze of exceptions and permitted activities that can vary from city to city.
But courts, authorities and lawyers are reminding people that one area where the rules never wavered is how to adhere to custody agreements in the age of COVID-19.
Since the beginning of the pandemic, some parents have refused to allow their children to visit their former partners, citing the risk of contracting the new coronavirus, according to individual reports from these interest groups.
Santa Clara County has had at least nine custody cases since March of parents reportedly violating a custody agreement to protect their children from exposure to C.OVID-19. There have been numerous other cases that increased the risk of coronavirus, but after some private intervention, the visits were finally carried out as ordered by the court.
“This is a parent who specifically uses the on-site protection order as a justification for withholding custody or visiting,” said Assistant District Attorney Erica Engin, part of her office’s child abduction division. “We recognize that it is a legitimate, very frightening concern for parents. We try to find solutions. “
Most shelters and similar laws restricting movement have exemptions to allow child custody arrangements. The Santa Clara County Supreme Court issued a notice stating that during the pandemic, parents “should follow their parenting plan as closely as possible” and that “the COVID-19 pandemic is not in itself a reason to visit or to refuse parental leave. ”
While the name of their unit sounds ominous, Engin’s job is primarily to enforce the court-ordered agreements. She works closely with DA investigator Stella Cruz, a former San Jose police officer and teacher who first noticed the local micro-trend of coronavirus-inspired non-compliance.
“COVID is not a legitimate excuse to keep your child away from a guardian,” Cruz said. “You still need to follow the directions, but you need to take precautions. You need to see a judge to change the orders. “
Cruz said that so far only one South Bay case of a parent calling COVID-19 for refusing to cooperate with custody or visiting instructions required an arrest warrant. Most of the time, showing a parent the judicial guidance was enough to end the conflict.
“Some parents will question and have concerns about the child walking back and forth between the two houses,” said Cruz. “But once the (court) policy has been sent to the parents, they mostly do the exchange.”
One reason Engin draws attention to these cases is to save parents unnecessary contact with the authorities.
“We are one of the few law enforcement agencies that is not trying to prosecute you,” she said. “We don’t want to use law enforcement or police powers.”
John Conway, a veteran family law attorney in South Bay, said “it’s a tough problem” helping parents address concerns about COVID-19 and the frequent ransom of their children to custody plans.
“It’s uncharted territory for lawyers and the courts,” Conway said, adding that it gets worse when parents disagree on which restrictions to obey. “When you have one parent on one side and another parent on the other, it can be very problematic.”
Conway says there is no formula for how any bout of COVID-19 defiance would be handled by the courts.
“You would consider it on a case-by-case basis. The court is unlikely to despise anyone (against a custody decision) unless there is a gross violation, ”he said. “It’s important for people to remember that a court order is a stop sign, not a recommendation or a suggestion. The primary aim of the court is to protect the child. “
Engin also said that virtual visits via online video conferencing platforms such as Zoom or Skype may in limited cases meet the visit requirements but should not be treated as a full substitute for pre-arranged in-person visits. In the early days of the shelter’s arrangement, it was difficult, if not impossible, to conduct a supervised visit that required a third party. However, as more public spaces open up, these precautions can be taken with adequate social distancing.
There remains an important exception to these guidelines, which revolves around cases where the parent and child are fleeing domestic violence or an abusive environment Experts claim the number of reported cases is increasing during the shelter on the spot orders. Engin said these cases represent a variety of the cases where she fails to respect custody.
But by and large, she said, most parents just needed a stern reminder that the courts didn’t see COVID-19 as a deal breaker.
“The court has already thought about it,” said Engin. “If the parents have legitimate concerns, we hope that they will communicate with each other and find a compromise that is fair to both parents. If they do that, they have nothing to fear from the court or from us. “