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Pandemic pushes child custody into uncharted territory

Already-fraught cases are further complicated by coronavirus, and concerns about its spread may not be a defense for those who want to pause the usual shuttling

Elisabeth Barnard and her daughter, Lyndee Redford, pose for a portrait outside of their home in Pleasant View, Weber County, on Tuesday, April 14, 2020. Barnard’s ex-husband recently took Lyndee to Idaho, where he lives, for his weekend visitation, against Utah’s “stay home, stay safe” directive.
Elisabeth Barnard and her daughter, Lyndee Redford, pose for a portrait outside of their home in Pleasant View, Weber County, on Tuesday, April 14, 2020. Barnard’s ex-husband recently took Lyndee to Idaho, where he lives, for his weekend visitation, against Utah’s “stay home, stay safe” directive.
Kristin Murphy, Deseret News

PLEASANT VIEW, Weber County — Elisabeth Barnard and her 3-year-old daughter were at home watching movies in their pajamas and recovering from the same fever and nagging cough nearly three weeks ago when they heard loud knocking on the front door.

Two Pleasant View police officers stood at the threshold, took her fingerprints and handed her a citation for custodial interference, a class B misdemeanor.

Barnard had felt relieved after her ex-husband, who travels for work, had canceled his weekend with the child, she said. She and the girl had not yet been tested for COVID-19 and didn’t want to risk contracting it later on. Her older son, who has a respiratory condition that at times has sent him to the hospital, was staying elsewhere as a precaution.

The parents settled instead on virtual visits in half-hour video calls, but later disagreed on the logistics. When the girl’s father arrived from Idaho to retrieve her, Barnard resisted. Her own doctor and guidance from health officials told her to stay home.

“I have no hidden agenda,” Barnard said. “I’m just trying to do what’s best and follow the rules.”

While the coronavirus has upended almost every facet of life and Utah’s court system, the usual parent-time standards remain in place. Judges and court commissioners are evaluating disagreements case by case, and Gov. Gary Herbert has ordered visitation to go on as normal.

Divorced parents on good terms might have no trouble crafting new plans, but the virus is further complicating the issue in strained relationships. Those who deny the other parent time over coronavirus concerns may ultimately risk their own custody rights.

A new dilemma

Tristan Rhoads, of Cottonwood Heights, said her 3-year-old daughter has weakened lungs tied to a prenatal stroke, a condition she fears makes the girl vulnerable to the coronavirus. They are living with Rhoads’ parents — both 73 years old and with health problems of their own — as she and her husband finalize their divorce.

In March, Rhoads wrote him saying she would keep their daughter Ryelynn for three more weeks, and later pitched a plan to defer a visit in exchange for more time later on.

Her concern grew when her ex had canceled a March visit due to a sinus infection and as he and others in his household continued to work outside the home each day, she said.

But her husband declined her request and sought a court order granting the normal schedule. Third District Commissioner Kim Luhn directed Rhoads to comply in a court filing the next day, a move the mother criticized. She said she did not have a chance to respond.

Her husband’s attorney, Aaron Garrett, said he believes dozens and possibly hundreds of couples around Utah are at odds in much the same way.

“In my opinion, it was so obvious that we were in the right, she didn’t need to have a hearing,” he said. Garrett said the pandemic is not reason enough for a parent to rearrange an existing schedule.

“Otherwise, every divorced couple in the entire state would be doing that, and we’d have pandemonium on top of a pandemic,” he said.

Rhoads and Barnard said that line of thought puts the right to a visit before their children’s well-being and public health.

“It’s just a huge contradiction and very frustrating and very scary, because I’m putting my daughter in harm’s way,” Rhoads said. “It’s just Russian roulette. It’s just a matter of time before she gets it or one of us gets it.”

Rhoads said she monitors her daughter’s temperature every hour after she returns, and she and the child keep away from her parents.

In Weber County, two nights before police arrived at her doorstep, Barnard said her ex-husband continued to call her after she asked him to stop, so she drew a line. She would park the child in front of her phone’s camera, but it would be his job to keep the girl engaged. He responded by saying he would instead drive from his home in Idaho to pick up the girl, she recalled. That state had issued a shelter-in-place order, but it made no mention of parent time.

Attorney Elly Hendriksen, who represents Barnard’s ex-husband, said she and her client simply sought to follow guidelines from the courts.

”It essentially says if don’t have a positive test, custody should remain unchanged,” she said. “Unfortunately, it’s not for one parent to decide. We have to go by our court orders.”

Hendriksen said Barnard previously failed to allow parent time. Court records show a judge made that finding for a missed weekend in 2018. It followed a hiatus in visits, so Barnard said she thought a weekend was too long and offered a shorter time frame.

Uncharted territory

Utah courts spokesman Geoffrey Fattah said judges and commissioners are reviewing specific concerns on a case-by-case basis.

“The courts do expect parents to continue to follow court visitation and custody orders,” Fattah said. “However, the courts will take into consideration events related to COVID-19.”

Some of the state’s judicial districts have handed down more specific guidelines.

Utah’s 3rd District Court — covering Salt Lake, Summit and Tooele counties — is directing families to continue as normal unless someone in either household has tested positive for COVID-19. Commissioners in the 2nd District — in Davis, Weber and Morgan counties — have issued the same guidance.

Outside of Utah, other states are taking similar approaches. Courts in New York and Massachusetts are directing both parents to cooperate and arrange phone or video visits when one must self-quarantine. In Washington State, pro-bono attorneys have urged caution before calling off long-planned handoffs to the other parent.

Linda Smith, a family law expert and professor at the University of Utah, said she has fielded several questions from concerned parents in her volunteer job with the courts’ self-help center.

“All things considered, it would be better for the kid to regularly see both parents, but this is a new question — there aren’t any cases on it,” Smith said. I think the courts will do a good job of making decisions on a case-by-case basis, but people ought to be trying to sort out what makes the most sense in light of everyone’s situation.”

A parent who’s offering up virtual time or substitute time later on likely won’t be held in contempt or found guilty of custodial interference, because their decision-making isn’t based on an an intent to interfere with visits, Smith said. She expects courts will order makeup time for anyone currently losing out.

Yet those keeping a child at home could potentially risk losing custody, Smith said, especially if it’s not the first time they have violated the arrangement. Denying the other parent time is grounds for modification of a decree to let the other person be the primary parent.

Smith said parents can also file a petition to modify a schedule. Even though such motions may not be heard for some time amid the pandemic, the move would document a parent’s concern.

In the busy 3rd District, any previously scheduled hearings on such motions have been postponed until June, and new court dates are not yet being set, noted Stewart Ralphs, executive director of the Legal Aid Society of Salt Lake. Like Smith, he has also fielded an uptick in questions from parents weighing the what-ifs of their usual schedule.

The courts still are holding emergency hearings, but it’s not clear if they would consider high-risk family members as emergencies. And the legal system does not have the capacity to review each dispute tied to the coronavirus, Ralphs said.

“The courts would come to a grinding halt,” Ralphs said. “They already have come to a grinding halt.”

Foster visits

Others have voiced concerns that some case workers are directing foster families in the Salt Lake Valley to hold in-person visits with the child’s biological parents. Sheila Stromberg, a former foster parent, said several current families she’s in touch with have reported feeling at risk, especially those who have prior health problems.

“It’s extremely short-sighted,” Stromberg said.

Diane Moore, director of the Division of Child and Family Services, said most meetups are being held virtually. She said the in-person meetings are exceptions and only available to those who are healthy. In one recent example, a father visited with his child a final time before his parental rights were terminated, she said. The agency is tweaking its guidelines as information is raised, she said.

“Our goal is just to keep everybody safe and to make sure that we have a reasoned and balanced approach,” she said. “Parent-child time is absolutely essential. It’s one of the greatest predictors of success.”

Prison

Similar concerns have cropped up in the criminal justice system.

Provo defense attorney Ben Aldana has long visited clients at the Utah State Prison, but he sought to call a client instead last week for a short discussion about a hearing the next day.

Prison policy does not allow an incoming call without a judge’s order, a longtime rule that remains intact amid concerns the virus could infiltrate Utah’s prison system.

“I just think it’s an unreasonable burden,” Aldana said. “The legal process requires attorneys to have quick and unfettered access to our clients, and when corrections interferes with that, it interferes with representation.”

Aldana had no symptoms, but he feared he might carry the virus into the prison — or contract it there. Although a glass wall would shield his client from any outside germs, he knew he’d be within feet of officers.

Aldana is a public defender, so the woman he is representing on an allegation of a probation violation isn’t on the hook for legal fees. But a person who hires a private attorney could end up paying higher bills for the additional work, he said.

The prison has paused family visits and volunteer work at its Draper and Gunnison buildings, and has set up phone and video systems for defendants to appear virtually for hearings deemed essential by the courts system.

A Utah Department of Corrections spokeswoman said inmates don’t need approval from a judge to place a phone call.

But if an attorney’s message asking a client to call them is delayed or lost, Aldana countered, they may need to wait days or weeks to address the matter at the next hearing.

Contributing: Brittany Tait