Custody/Visitation Schedules in the time of the COVID-19 Pandemic

We are all, throughout Virginia and the country, reeling from the consequences of the current public health crisis caused by the COVID-19 virus, and its unprecedented impact on nearly all areas of life. In Virginia, our Supreme Court has declared a judicial emergency and limited all hearings in Circuit and District Courts to those deemed “essential” or “emergency” – generally, not including hearings routine in typical family law cases. Many parents are finding themselves largely working from home or even laid off. And, perhaps most crucially, Virginia’s schools have closed for the remainder of the academic year.

Many separated and divorced parents are wondering about how best to comply with their custody and visitation orders in these unprecedented times. The most important thing to note is that Governor Northam’s Temporary Stay at Home Order specifically permits “traveling required by court order or to facilitate child custody, visitation, or child care.” So Virginia parents are still able to transport their children for changes in parenting time as required by their court orders or informal arrangements with the other parent.

A more difficult question is what custody/visitation schedule should apply, given the closure of schools and the fact that custody and visitation agreements and orders are usually dependent on school calendars. While as attorneys we try to contemplate many circumstances in our agreements and orders, such as teacher work days and snow days, unfortunately no one could have contemplated a public health crisis on such a large scale.

The Hon. Judge John M. Tran of the Fairfax County Circuit Court addressed a case on an emergency basis last week based on parents’ disagreement on how their Order’s schedule should apply with schools now closed through the rest of the academic year. (Emergency custody hearings, meaning a “true” emergency that cannot wait to be heard, are still permitted, although due to health and safety concerns this particular matter was decided “on the papers” rather than with an oral hearing.) In this particular case, the Order provided that the children would spend the first 2/3 of a lengthy school break with Father, and the remaining 1/3 with Mother. The school break was to end April 3rd, with the children returned to Mother on March 22nd. When the schools closed, Father took the position that the remainder of the school year was now the “school break,” and he did not have to return the children until 2/3 into this longer “school break.” Mother filed an emergency motion for the children’s return.

Judge Tran addressed the fact that the pandemic constitutes a force majeure, a circumstance parents could not have predicted. However, he ruled that referring to the school calendar is a “typical and prefer[red]” source of defining custodial time, which allows parents and children to plan out the year and particularly provides a sense of stability and predictability for children. This is especially important as the COVID-19 virus upends most of what the nation’s children had come to expect. Ultimately, Judge Tran ordered that the children be returned to Mother, but did not assess fees against either party, finding that both parents were trying to apply appropriate interpretations of their Order to this crisis situation.

While Judge Tran emphasized that predictability and stability of a school calendar is preferred in this time – and we are encouraging all of our clients to continue to follow their custody/visitation schedules as if school were still in session – he also noted that such a calendar cannot control regardless of any other circumstances. He encouraged parents who co-parent to come up with appropriate solutions together, as necessary, in the context of this crisis. This indicates the need for cooperation where, for instance, parenting time transfers that occur interstate or internationally are not possible due to restrictions on travel, or a parent cannot exercise parenting time due to their own illness or illness in his or her household.

Right now, all of Virginia’s separated and divorced parents should be following their orders as if school were still in session (and following the school calendar as their order may require), but should also exercise cooperation and flexibility in the best interests of their children. In the event that you need assistance in enforcing or resolving matters of custody and visitation at this time, please do not hesitate to contact us. We remain open on a more limited basis, Monday through Friday from 9am to 4pm, with a rotated schedule to protect the health and safety of our staff and clients. Please give us a call at 703-251-5400, contact us today and ask to speak with one of our experienced Northern Virginia Family Law Attorneys or email Lily Saffer at

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Posted in: Family Law