The directives of the federal and state governments have been to stay at home in order to “flatten the curve” of the Coronavirus outbreak.
Governor Northam’s Executive Order #55 provided in part:
All individuals in Virginia shall remain at their place of residence, except as provided below by this Order and Executive Order 53. To the extent, individuals use shared or outdoor spaces, whether on land or on water, they must at all times maintain social distancing of at least six feet from any other person, with the exception of family or household members or caretakers. Individuals may leave their residences for the purpose of:
>Obtaining food, beverages, goods, or services as permitted in Executive Order 53;
>Seeking medical attention, essential social services, governmental services, assistance from law enforcement, or emergency services;
>Taking care of other individuals, animals, or visiting the home of a family member;
>Traveling required by court order or to facilitate child custody, visitation, or child care;
>Engaging in outdoor activity, including exercise, provided individuals comply with social distancing requirements;
>Traveling to and from one’s residence, place of worship, or work;
>Traveling to and from an educational institution;
>Volunteering with organizations that provide charitable or social services; and
>Leaving one’s residence due to a reasonable fear for health or safety, in the direction of law enforcement, or at the direction of another government agency.
This EO makes clear that travel outside the home to fulfill court-ordered custodial exchanges is permitted; however, that is not the question posed here.
Rather, the question posed here is whether a parent who decides not to follow the EO does not maintain social distancing, and otherwise does not follow the terms of this EO could lose custodial rights of a child because of those actions.
To be sure, the argument that exposure to the virus, even when the parent’s status as an essential worker, has been presented several times. An emergency room physician in Florida lost custody at the trial court level in an emergency hearing because of the risk to her and, therefore, to her child, but the Florida Court of Appeals stayed that order. A firefighter, meanwhile, successfully defended against such a motion.
In many cases, the issue has not come up because parents who were exposed to the virus voluntarily elected to forego their custodial rights for a time in the interest of their child’s safety.
Clearly, just as some feel that the restrictions are unnecessary and others believe them vital, judges will hold different points of view.
A few indicators, however, suggest that involuntary or required contact with the outside world forms no basis for a modification of custody.
Finally, and practically, access to courts is limited at this time and for at least a couple more weeks to emergency motions only.