The Impact of COVID-19 (Coronavirus)

And How It Affects Your Custody and Parenting Time Agreement By: Amanda Roberts

By now almost everyone has been affected by COVID-19 (coronavirus) in one way or another. Whether you have been ordered to work from home, are practicing social distancing, or worse of all have been exposed to the virus, these are unprecedented times in our society.

What does COVID-19 and Governor’s Sisolak “stay at home” mean for custody exchanges? We have gotten a number of calls from parents who have concerns. If you have a Court Order, you are supposed to follow the Court Order. The only reasons that a parent would not follow that Order is if instructed to do so by law enforcement or Child Protective Services. In those instances, you need to get something in writing to provide to the Court to avoid being held in contempt by the Court. Moreover, just because you get something in writing does not mean the Court will forgive the failure to follow the Court Order.

The mandate from the Governor does not indicate that custody exchanges should not occur. The speech that was given on March 17, 2020, specifically discussed the difference between “family” and “non-family.” The speech indicated that “some events are unavoidable.” In our legal opinion, those unavoidable events are custody exchanges. There are legal ramifications for failing to do custodial exchanges.

In the event a parent fails to do a custody exchange, documenting the lack of compliance is important. Our law enforcement services are overwhelmed, it makes little sense calling the police unless you believe there is a safety issue because in the majority of situations the police will tell you it a civil matter that must be addressed the Court. We suggest committing the lack of compliance to writing via email or text and keeping copies of the communication. It is not a back and forth dialog, it is a simple statement that the parent did not conduct the exchange as Ordered. If you do the exchange in a public place, buy something to prove to the Court you were there in the event of a dispute. A lot of public locations have restrictions, but you could go through a drive through or buy something from a convenience store. As a last resort, photograph yourself at the location with a geotag including a timestamp. There must be some way to do this besides involving law enforcement. This should be done for each and every child exchange that is not followed.

In the event a parent withholds a child in violation of the Court’s Order, the non-offending parent would be able to seek compensatory time pursuant to Nevada Revised Statute (“NRS”) 125C.0045 and/or 125C.020. What does that mean? If a parent withholds a child for twenty-one (21) days the non-offending parent can seek an Order that awards them make-up time for the wrongful acts of the other parent. NRS 125C.020 (2)(a) provides that if the Court finds a parent was “wrongfully deprived” of their timeshare then the Court must (mandatory not discretionary) grant additional time “of the same type and duration[.]” So, here it seems clear that the parent could get the twenty-one (21) days of make-up time. It is worth noting, NRS 125C.020 is not applicable in a joint physical custody situation; however, it does not mean that there are options under NRS 125C.0045.

Besides compensatory time, a parent may also find themselves in contempt of Court or fighting a request to change custody. Contempt is governed by NRS 22.010. In our opinion, if a parent withheld for twenty-one (21), each day is a potential act of contempt and could be punishable by the Court. The punishment for contempt pursuant to NRS 22.100 includes twenty-five (25) days in jail, a fine of $500.00 and/or the payment of attorney fees and costs.

Requests to change custody would be based best interest, unless it is a primary physical custody situation. Best interest is set forth in NRS 125C.0035 (4) which outlines factors the Court must consider. One of the factors is level of conflict and another is level of cooperation. We believe withholding the child due to COVID-19 would fall into this categories and might result in a request to change in custody. To be clear, it might not result in a change, but it does not stop a parent from making the request.

We want to stress that this is an unprecedented event worldwide and we have no point of reference to provide guidance on what options the Court would consider. So, our advice in this situation is to follow the Court Order. There is no basis at the present time to disrupt the custodial schedule. There are legal ramifications if a parent disregards the Court Order.