06/11/2020
COVID-19 CUSTODY EXCHANGES (FAMILY LAW):
Please remember that quarantine has not removed all obligations under existing court orders. As with most things in the legal system, the answer is "it depends".
The court is primarily concerned with the "best interests of the child", so if a parent is displaying flagrant disregard of safety during the public-health crisis, then their co-parent can reasonably refuse to allow transfer (perhaps as long as a 14-days incubation period). This, however, presents many legal problems.
First, a court order is "an order'. It can be a crime not to comply (CA Penal Code 278 "Child Prevention" laws) - which are the equivalent of "abduction" by a co-parent, for violating the custody schedule. However, under the exceptions of P.C. 278.5, a parent can at least argue to refuse to comply with a custody transfer for child safety. Whether or not this is a "crime", lies in the hands of both the responding officers and the prosecuting and defending attorneys in a criminal court. This is "gray area".
However, the question continues to arise if one parent can refuse a custody transfer for this-or-that reason. There are no clear answers.
What is clear, at least in Santa Clara County, is that court hearings are being constantly reset to latter dates, and that the court clerk's office is woefully under-staffed and is (therefore) only responding to emergency matters. No matter what your level of complaint is, if the court even considers it "emergency", at this moment it may take weeks for them to even open the electronic filing "envelope", let alone set a hearing. You should weigh your options accordingly.
Therefore, we should all strive to work together with your co-parents. Not because of this crisis, but "the best interests of the child". Ultimately, that is how your actions today will be judged in the following weeks or months.
Be aware, however, that participation in protests during this pandemic, can provide your co-parent with an argument that you have up to a 14-day incubation period to prove that you are now "negative" before they allow a transfer to occur.
Finally, be aware that depriving a child from contact with the other parent often results in a crime (in the majority of cases - see penal codes above). Even if you manage to avoid being found guilty of a crime, the family court usually views poorly attempts by one parent to deprive the other of custody, since it is the child whom they are supposed to care about. Let that be your focus, now, and always.
