Custody battles take on new complications amid coronavirus crisis

Parents with joint custody or visitation rights have to navigate lockdowns, emergency motions and fears of COVID-19.

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A woman wears a face mask as she hugs her son while they watch the arrival of the USNS Comfort in New York City [File: Eduardo Munoz/Reuters]
This article has been updated to clarify that Lieutenant Commander Matthew Meury said in his motion that he had "personally reviewed information that many others do not have".

When Trisha Garcia received notice of an emergency custody motion from her ex-husband on March 26 she was not surprised. Since 2011 when the couple separated, Garcia had been involved in continuing litigation over their three children. In 2017, Matthew A Meury, a US Lieutenant Navy commander, gained full custody of the pair’s children. “He spent years trying to prove I’m an unfit mother,” Garcia said.

But this time, it was different – Meury filed an ex-parte motion (for only one party) stating his 15-year-old son and 13-year old daughters should stop visitation with their mother due to the COVID-19 crisis sweeping the United States. Garcia, 44, a registered nurse, in the post-anaesthesia care unit in a Washington hospital was deemed a safety risk to her children. “I’ve been a critical care nurse for 23 years and I have no drug, alcohol or mental health issues,” Garcia said. “But he has time, money and power.”

In the motion, Meury stated that due to his position in the Navy, he “personally reviewed information that many others do not have” and it was imperative his ex-wife stop visitation.

Since the motion was ex-parte, Garcia was able to present her case by phone. She said she informed the judge she does not see COVID-19 patients and has all the proper protective gear. Washington state Pierce County Commissioner Barbara McInvaille agreed with Meury’s motion and denied Garcia access to her children until the COVID-19 crisis had passed.

“What does that say for all healthcare workers right now – should all essential workers lose visitation with their children?” Garcia asked.

“For my ex, this isn’t about coronavirus, it’s about control. My children are devastated. My daughters cried for hours, they need their mother right now,” Garcia told Al Jazeera.

Through his lawyer, Meury refuted Garcia’s charges saying she does not tell the truth, struggles with mental health issues, and he lives in an area where there is a very low rate of virus infection. His lawyer also said Garcia wants to paint herself as a victim of her job, but that is simply not accurate.

Garcia was among the dozen of COVID-19 emergency custody motions reviewed by Al Jazeera that have been filed since the crisis began. Cases include an New Jersey-based emergency room nurse who did not want to drive her asthmatic children to cross state lines, an Oklahoma-based clinic worker who lost custody of her children during the pandemic, and a Westchester-based mother whose ex-husband banned her from their “conesting” arrangement due to virus fears.

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A woman puts her son to bed during the outbreak of coronavirus disease [File: Caitlin Ochs/Reuters] 

In addition to the emergency filings, Al Jazeera interviewed several parents who were considering disregarding custody plans due to conflicting state shelter-in-place orders. Each of the 50 states has issued different restrictions on social distancing and shelter-in-place orders, leading to mass confusion for parents who share custody in different states. Cases include a Maryland-based mother who is immune-compromised and does not want to send her eight-year-old to Illinois to see his father due to fears he will be exposed and an Iowa-based mom who does not want to expose her child COVID-19 by visiting her father, an essential worker.

“It’s terrible out there,” said advocate Danielle Pollack of Child USA, a Philadelphia-based think-tank focusing on child protection issues. “COVID-19 has descended and courts have given very little guidance. What was troubling in the system beforehand has been exacerbated, parents don’t know what to follow.”

Few courts have issued guidance about how parents should handle custody arranges especially if there is continuing litigation. Superior Court Judge Anne Hirsch, who presides in Washington state and is a member at the National Council of Juvenile and Family Court Judges, does not believe this guidance is the role of the courts. “Each state, each country, each court is different,” she said. She advises parents to review the state’s shelter-in-place or emergency orders and then consult with a lawyer. “But courts are open, and if people have an emergency they should file.”

‘Turned into a weapon’

Statistics detailing how many court custodial orders are in place are hard to come by, but a 2015 US Census report found that one-quarter of America’s children have a parent living outside of the house. Most of America’s divorced couples finalise a shared-parenting agreement without intervention. Researchers have found that approximately one in five families turn to the courts to define custody plans. In high-conflict cases that litigate custody before the courts, studies have found that 25-50 percent have a history of violence.

“COVID-19 can be turned into a weapon by an abusive ex-partner to have courts vacate parental rights,” said Joan Meier, a clinical professor at George Washington School of Law, and founder of DVLeap, which files appeals pro-bono in domestic abuse cases. “Courts have to issue guidance with extreme sensitivity.”

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A young girl runs on a deserted street inside an area under lockdown due to coronavirus disease [File: Joy Malone/Reuters]

Ann, a Cincinnati- based labour and delivery nurse who did not want to release her last name due to safety fears, said her ex-husband has been holding her 11-year-old twins since the COVID-19 crisis began. He does not want their children to be with her during the crisis. In text messages shared with Al Jazeera, he wrote: “Feel free to call the police, I doubt they will respond.” In a later message, he wrote: “No matter what I am not going to comply until the Governor lifts the order.”

Due to safety fears, she said she is hesitant to file an emergency order to return the child, as her ex-husband has a long history of alcohol abuse. Often he misses court-ordered breathalyser testing, and when he drinks, she said, he becomes more abusive. She fears filing for an emergency order will cause him to retaliate.

“Parents have to understand that courts aren’t punishing them, but looking out for the best interests of the child,” said Marcia Zug, a professor at University of South Carolina’s School of Law. Zug, who has written frequently about family law and policy, said the courts are currently in a period of great unknown with the pandemic, but will look at the parents’ case history before making any decisions. Courts have made custody decisions previously based on health emergencies, she said, and even though decisions are more amorphous now, they will probably use those guidelines during the COVID-19 crisis.

“In the future custody plans will have pandemic clauses,” said Zug. “The best plan for now is for parents to figure it out between themselves and compromise.”

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A swing sits empty on a playground outside Achievement First charter school in Providence, Rhode Island [David Goldman/AP Photo] 

Recovery nurse Garcia said she does not have that option because compromise has never been possible with her ex-husband. She has not seen her children since March 8, and credits her nursing profession with keeping her going.

On April 28, 2020, the judge decided to overturn the visitation order allowing Garcia to see her children again. The judge ruled that halting custody due to the novel coronavirus was against the state’s specific emergency orders. In the order the judge wrote: “The father has failed to provide any specific threat to the children by interaction with their mother other than speculation and conjecture.”

Starting the first weekend of May, Garcia will be able to have visits with her three children.

“I found out and just wept. I miss my kids so much,” Garcia said. “No parent and no child should ever have to go through this.”

Source: Al Jazeera