Child custody cases in Santa Clara County complicated by coronavirus

Sheltering in place hasn’t been easy on anyone. But for those who share custody of their children, the problem is exacerbated.

Social distancing has made banal tasks like grocery shopping more arduous. Everything except essential businesses have shuttered their doors, so social endeavors like getting a drink with a friend or Sunday dinner at your favorite restaurant are out of the question.

While inconvenient, those setbacks pale in comparison to the logistics of having to wade through the court system if your child’s situation demands special consideration.

According to the Santa Clara County Superior Court, “(t)he COVID-19 pandemic is not, by itself, a reason to deny visitation or parenting time. Nor does the requirement to shelter-at-home justify, by itself, the denial of visitation or parenting time.”

However, children with respiratory problems are at greater risk of contracting COVID-19. Given the court’s policy, getting special consideration — such as rearranging shared custody for children with respiratory problems or when one parent has increased exposure — requires an emergency order. The family court is open to hear urgent matters, such as those involving allegations that a child’s health or safety is at risk or in domestic abuse situations. Although parents are still able to request consideration for emergency circumstances, the court has postponed all hearings originally scheduled from March 17 to May 29 by 90 days.

“Judicial officers are available to review all requests and will determine whether an emergency exists, and whether a hearing should be set on shortened notice,” Benjamin Rada, a spokesperson for the court, told San Jose Spotlight in an email.  “These decisions are made on a case-by-case basis.”

Rachel McKenzie, managing attorney at the ProBono Project, a New Orleans-based group that provides legal services to the poor and elderly in custody cases, said although there has been some confusion along the way — misunderstandings about whether courts are open or how the shelter-in-place order affects cases — everybody is working to ensure children’s safety.

“It’s kind of like what Indiana Jones says, ‘We are making it up as we are going along’,” McKenzie told San Jose Spotlight. “All of us have been forced to scramble. The one fortunate thing we have discovered is that the technology … has really been beneficial.”

Since the court is striving to maintain custody agreements barring an emergency, court officials are encouraging parents to make accommodations without involving the court whenever possible, McKenzie said. While technology such as Zoom, Facetime and Skype allow parents to get non-traditional forms of visitation, not everybody has access to WiFi, complicating matters.

And there are still going to be people who disagree with the court’s assessment of their case.

“Sometimes people get so wrapped up in not liking the other parent, they get so wrapped up in following the court order to the letter instead of wanting to do what is in the best interest of the child,” McKenzie said. “The problem, when you get down to it, is that all of us need to realize each judge is a human being, just like we are, and each judge is determining what is an emergency, just as we would.”

Andrew Cain, directing attorney at Legal Advocates for Children & Youth, said it isn’t just shared custody cases that are affecting children. Other branches of the court are being forced to navigate how to best advocate for youth during the coronavirus pandemic.

Cain’s office deals mostly with children who are domestic violence victims or teens who have children. While he is unaware of custody issues being a widespread problem during the COVID-19 outbreak, getting an accurate picture of the situation is difficult since those cases are spread across the legal system.

“Getting a clear picture of issues around custody and visitation and how the crisis is impacting custody in all situations isn’t easy. How families are being uprooted as a result of this crisis is difficult to get a handle on,” Cain said. “How are we supporting children and maintaining family relationships and securing a stable environment? Each court system has a different role to play.”

Despite some hiccups, the courts are handling custody issues well, McKenzie said, due largely to parents working to adjust accordingly.

“You would be surprised how much people are respecting the system,” she said. “It doesn’t matter what culture, what age group, the child’s age, what socioeconomic group — people have the same concerns, and the judges and the court understand that.”

Contact David Alexander at [email protected].