Can a Video Call be Used in Place of In-Person Parenting Time During the COVID-19 Pandemic?

Question:

Can a video call on a conferencing application, like Zoom, be used in place of in-person parenting time during the COVID-19 pandemic?

Answer:

I do not practice law in your state. Therefore, I cannot inform you as to the specific laws of your state, but I can provide you with general tips for this sort of issue.

COVID-19 presents unique and novel issues of first impression. To be clear, our country has faced unprecedented crises in the past. However, what makes COVID-19 so unique is not only the visceral government response, but also the era in which it occurs. Never before has technology been as pervasive in human life as it today. This leads to the interesting question of whether a virtual Zoom call can be used in place of in-person visitation during the pandemic.

The answer to this question depends on various factors. The primary ones likely are (1) your court order, (2) the jurisdiction you are in, and (3) what you and the other parent are able to agree on.

Let us explore the first scenario where you and your co-parent are unable to resolve the dispute. You want Zoom calls to protect the health and safety of your children and both households. However, the other parent insists on in-person parenting time. It is important to note that a court order remains valid and enforceable until it is changed.

If your court order permits in-person parenting time, compliance is essential to avoid being held in contempt. Remember, a court order is enforceable until it is changed. If you are unable to get the court order changed so as to prohibit in person visitation, you risk being held in contempt for failing to comply with the order.

Each state has different laws as to what constitutes contempt. Speaking with a Cordell & Cordell attorney is necessary to determine whether any proposed course of action risks exposure to contempt.

Reading your court order is a critical first step. Consider whether there are exceptions for emergencies, or where the health and safety of either party or children are in question. Also consider if your court order permits an agreed upon deviation from the order (this is standard language in most orders).

If, on the other hand, both parents are agreeable to using Zoom calls, doing so generally is permissible. The key difference here is the consent and agreement of both parents. Parents generally are free to select a custody and parenting plan, so long as it is in the best interest of the children. Courts generally prefer out-of-court dispute resolution.

Thus, if you and the other parent agree to use Zoom calls, doing so generally is permissible. To protect yourself, documenting the agreement is highly advisable. A text message or email is sufficient. This can protect against false claims of “withholding” the children.

I practice exclusively in the state of California. Most courts in California have issued some form of “best practice” guidance for custody related issues during COVID-19. The courts generally prefer parents to be reasonable and compromise.

If in-person visits for one parent should be limited, offering “make-up” time can be a fair and reasonable compromise. Using Zoom calls in the interim can help bridge the gap between temporarily suspending visits, due to health and safety concerns, and continuing to foster love and affection with the children.

Each case is unique, and child custody is fact-specific. This article cannot delve into the myriad of possibilities that may arise in your case, and whether based on such, Zoom calls can be used in place of in-person visits. Speaking with a Cordell attorney is critical to get the right advice for your specific situation.

Nevertheless, the general rule is that you need to do your best to comply with the court order that is currently in place. Failing to do so exposes you to potential contempt proceedings. Whether contempt proceedings may be brought against you depends on the laws regarding contempt in your specific jurisdiction. Some jurisdictions have “good faith” exceptions, while others do not. 

You also need to check for guidance with the local court in your jurisdiction. As mentioned above, many courts have issued some form of guidance on their websites. Regardless of the above, if both parents are agreeable to using Zoom calls, doing so is generally permissible, but it is highly advisable to confirm the agreement in a writing (text message or email).

To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, contact Cordell & Cordell.