On April 9th, the ABA Center on Children and the Law, ABA Commission on Youth at Risk, and ABA Section of Civil Rights and Social Justice hosted a webinar regarding the COVID-19 pandemic’s impact on child welfare cases. The webinar primarily focused on the federal Children’s Bureau’s March 27th guidance on how family courts and family law practitioners should proceed during these uncertain times. Now, more than ever, courts and practitioners play an integral role in ensuring the safety and welfare of children in our country.
The Children’s Bureau’s guidance was written in part in response to concerns regarding court closures, postponement of hearings, and complications regarding visitation. Across the country, and even in the Q&A sidebar of the webinar, parents have expressed concern that their co-parenting arrangements will be disregarded by ex-spouses amidst the stay-at-home orders coming down left and right. The isolation and social distancing that the COVID-19 pandemic requires may give parents a greater ability to damage the other parents’ parent-child relationship through explicit and implicit behavior, which may ultimately contribute to a child’s estrangement from both parents. Damaging behavior can include denigrating the other parent in front of the child, encouraging the child to take sides or exclude the other parent from his or her life, and exaggerating negative aspects of the other parent.
If a parent seeks to stop in-person visitation due to health concerns related to the COVID-19 pandemic, it may be difficult for a court to determine the credibility of the request. Webinar panelists from the Children’s Bureau emphasized that creativity was necessary in order to try to maintain some form of visitation and that blanket orders that suspend visitation altogether run counter to a firm commitment to individualized determinations for children and their families. But regardless, even if judges make case-by-case determinations to suspend in-person visitation, how feasible is the alternative––virtual visitation?
Currently, only six states have enacted virtual visitation laws. Utah was the first state to do so in 2004, followed by Wisconsin in 2006, Texas and Florida in 2007, and North Carolina and Illinois in 2009. The legislation across these six states is far from uniform. Utah has separate laws for virtual visitation when the child is over 5 years old and when the child is younger than 5 years old. Illinois provides for electronic communication for non-parent visitation (e.g. grandparent visitation). Notably, Wisconsin, Florida, and North Carolina make clear that electronic communication is not a substitute or replacement for in-person visitation. While this does not preclude family court judges from adopting similar measures in states that do not have virtual visitation laws, the lack of existing law means that judges must carefully consider and weigh the feasibility and desirability of in-person visitation against the feasibility and desirability of virtual visitation.
Virtual visitation is a much more invasive and potentially dangerous option for parents who may have left their ex-spouses due to abuse. Take, for example, a parent who has a no contact order, perhaps due to prior harassment or physical violence by his or her ex-spouse. The parent’s past abuser may misuse the technology required for virtual visitation, which can include recording and blackmailing, spoofing, electronic surveillance. Additionally, parents with fewer means will be less capable of finding ways to preserve their security while also complying with court-ordered visitation. If the parent has limited means, he or she may not be able to buy a burner phone or burner phone number in order to ensure that the ex-spouse does not gain access to personal contact information. Alternatively, even if the parent can afford certain types of technology, for example technology that allows for video contact, these types of technology may allow a past abuser to see intimate aspects of the parent’s life, like the inside of his or her own home, which may further traumatize the parent.
Setting aside feasibility, for the child, virtual visitation is not a replacement or substitute for personal contact, but given the uncertainty of the pandemic, it is difficult to ascertain how long alternatives may need to be in place. Promoting the safety and welfare of the child goes hand-in-hand with treating visitation as essential, especially now. Save for any immediate threat to a parent’s or child’s health, family court judges and practitioners should encourage and support in-person visitation when possible, while also encouraging parents to socially distance themselves, abide by public health laws, and practice good hygiene. While parents may be living in separate homes, in many cases it is in the best interests of the child for parents to create safe and healthy environments for their child and for the child to have interaction with and support from both parents.
About the Author: Jennifer Yu is a rising third-year law student at Cornell Law School. At Cornell, Jennifer has had the pleasure of working for the Child Advocacy Clinic and hopes to continue to pursue her passion for child advocacy and domestic violence advocacy. Prior to law school, Jennifer received a bachelor’s degree in sociology from Columbia University in the City of New York.
Suggested Citation: Jennifer Yu, Kids & Teens in Quarantine: Considerations for Navigating Co-Parenting During COVID-19, Cornell J.L. & Pub. Pol’y, The Issue Spotter (Apr. 24, 2020), http://jlpp.org/blogzine/kids-teens-in-quarantine-considerations-for-navigating-co-parenting-during-covid-19/.