Mother wearing mask caring for child

NOTE – COVID-19 is spreading rapidly, and the legal situation is changing in response. For a more updated discussion of parenting during this crisis, in particular after Colorado’s “stay-at-home” order, see our newer blog post Parenting Time & Exchanges During COVID-19.

Does Coronavirus Affect Custody or Parenting Time?

Bottom line up front – unless a parent is planning a specific activity or travel to a country which the federal government has placed on a travel alert list, the coronavirus will very likely not impact parenting plan, including vacations that either parent has planned. NOTE – after writing this post, the State Department issued a Global Level 3 travel alert. Typically, courts take notice of level 3 advisories, and if that holds true now, then a parent could block the other parent from any international travel with children. However, as alerts are typically issued based upon country-specific data, it is also possible that a judge could decide this alert is a “knee jerk” reaction that was not subject to the same level of thought and review as most travel alerts.

Coronavirus (or COVID-19) is increasingly having an impact on so many aspects of our lives – schools are closing, colleges trying to shift to online teaching, states are declaring states of emergency and setting up containment zones, the NCAA and other sports are going spectator-free, the NBA suspended the remainder of its season, even buffets in Las Vegas are being shut down. And today, Tom Hanks announced he has the virus. (NOTE – this quick list will probably seem quaintly out-of-date in just a few days, as coronavirus news is breaking pretty rapidly).

As of today, there are over 126,000 confirmed coronavirus cases worldwide, with 4633 deaths. But both of these numbers are increasing daily, so will already be higher by the time you read this. Italy is virtually shut down, Chancellor Merkel predicts up to 70% of Germans could become infected, and the World Health Organization (WHO) today declared coronavirus a pandemic.

While most people (especially children) who contract the virus are only mildly affected, death results in more serious cases. And the coronavirus fatality rate is high, but not known with any precision thanks to both the number of cases, and the number of fatalities, probably being underreported. The WHO has estimated it to be as high as 3.4%, while the New England Journal of Medicine notes fatality estimates of below 1% to as high as 1.4% in recent studies. Compare that to the flu, which kills more people, but has a mortality rate of “only” 0.1% or maybe an order of magnitude lower than that of coronavirus.

COVID-19 is pretty scary stuff, especially for those of us with children. So what does it mean in a family law case?

Impact Of Coronavirus On Post-Divorce Travel With Children

From a child custody or parenting perspective, the issues are greater than missing a sports game or a favorite Vegas pastime. The Centers for Disease Control is recommending against taking cruises, and the federal government has travel bans in place for several nations. Just tonight, President Trump announced a 30-day ban on travel from the European Union, adding to prior coronavirus-related restrictions on countries such as China and Iran.

What Is A State Department Travel Advisory?

For international travel, the go-to resource is the U.S. Department of State travel advisory list, which lists potentially dangerous travel for a variety of reasons, including coronavirus, as well as terrorism, crime, etc. The web site even has an interactive map showing advisories worldwide.

There are 4 levels of travel advisories:

  • Level 1 – Exercise Normal Precautions: “This is the lowest advisory level for safety and security risk. There is some risk in any international travel. Conditions in other countries may differ from those in the United States and may change at any time.” In short, any travel has risks, so a Level 1 advisory means very little.
  • Level 2 – Exercise Increased Caution: “Be aware of heightened risks to safety and security.” Looking at the countries on this list before the global Level 3 coronavirus alert, such as the United Kingdom or Germany, both of which are safer than the U.S., this level too means little more than “we’re Americans, so may not be popular abroad.”
  • Level 3 – Reconsider Travel: “Avoid travel due to serious risks to safety and security.” Typically, the Level 3 warnings mean something, but with the new global advisory, who knows?
  • Level 4 – Do Not Travel: “This is the highest advisory level due to greater likelihood of life-threatening risks.” In other words, don’t go!

Impact Of Coronavirus On A Colorado Divorce

In Colorado, there is no automatic ban on divorced parents bringing children to countries with travel advisories, so in most cases a parent wishing to prevent the other from such travel would need to seek a court order. And in Colorado at least, that parent would have a hard time overcoming the presumption that a fit parent is presumed to be acting in the best interests of the children during his/her parenting time. DePalma.1In re: Marriage of DePalma, 176 P.3d 829 (Colo.App. 2006).

The attorneys at Graham.Law have litigated several cases where a parent has tried to stop the other from bringing the children abroad, and in every case the court allowed the travel. Perhaps significantly, in every case the travel was to a country or region with a Level 2 or Level 1 advisory, none involved a country with a “Reconsider Travel” advisory.

In order to avoid the expense and unpredictability of emergency motions, at Graham.Law we encourage our clients to address travel issues in a parenting plan, and when possible, include the following language:

“The parents may travel abroad with the children during their parenting time, and shall provide the other with at least 30 days written notice of the itinerary. No consent or order is required, except to a location which has a Level 3 (Reconsider Travel) or Level 4 (Do Not Travel) Travel Advisory in effect per the State Department web site (currently https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories.html). Within 14 days of one parent providing the other with a consent form/letter authorizing travel consistent with this provision, the other parent shall return the completed form to the requesting parent.”

How about domestic travel? Thus far, there are no governmental recommendations against children flying on domestic flights. And even in places like California, Seattle or New Rochelle, which have higher affliction rates, the percentage of people with coronavirus is statistically tiny. Judges do not indulge speculative or fanciful harm to children – until the virus has afflicted a meaningful percentage of the population (a day which may well be coming), it is hard to conceive of a court suspending an out-of-state parent’s parenting time with the children. Moreover, Colorado already has 33 coronavirus cases (as of 3/11/2020), so who’s to say we’re really any safer here than in the rest of the country?

In the past week, we have had multiple inquiries about whether COVID-19 is sufficient reason to stop the children from traveling. And until/unless the federal government imposes more restrictions, our advice has been consistent – a judge is not going to ban travel to a domestic location unless either (1) the child has a medical condition which has caused the pediatrician to recommend against the travel, or (2) the feds have recommended against such activity (e.g. a cruise).

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