The Covid-19 pandemic has changed many things in the past few months. With social distancing and lockdown still in place all over the world, divorced parents can also face new challenges with visitation.
What if your ex-partner is refusing visitation because of the risks Covid-19 may pose, but your child is not ill? What are reasonable requests to make of each other? And what do you do when visitation is not possible because of closed borders? We will discuss these questions below.
The right to visitation during the Covid-19 crisis
Though we do not have all the answers, we do know that Covid-19 does not suspend visitation rights. The Dutch child ombudsman made it very clear at an early stage of the lockdown: children must be allowed to visit their parents, unless it is plainly against their (health) interests.
The child ombudsman advises a 4 point plan to determine whether visits are safe:
- Research what is in the best interests of the child and its health. Particularly for infants of 0-4 years old, physical contact is important for emotional development and attachment. Not seeing a parent for a long time can cause lasting emotional damage.
Ask older children what they want and involve them in the decision making process.
- Assess the risk to others if the child visits.
Is a parent or a member of his or her household in a high risk group?
Does a parent work in a field where they are in regular contact with people that may be infected? Etc.
- Decide together what is in the best interest of the child based on your assessment. The decision may be that visiting at home is not advisable. In such case alternatives may be used, such as Zoom or Skype or seeing each other outdoors while social distancing.
- In as far as possible, explain to the child together what your decision is and why.
This plan can also be used to periodically check whether the risk assessment is still valid or to assess whether visitation can restart as normal.
What the courts say regarding Covid-19
Unfortunately, some parents panicked at the start of the crisis and unilaterally cut all or most visitation. In the first weeks of the crisis, there were few legal measures available to correct this. With the Dutch courts coming back online, in recent weeks various decisions have been made that give us more guidance on what is and is not acceptable.
Parents had a co-parenting arrangement and the children normally spent a week with each parent. In March, the father suddenly refused to let the children return to their mother. The father is a cardiac patient and one of the children has asthma. The father insisted the children stay in quarantine with him. The court ruled that the father’s choice as a cardiac patient to stay in home quarantine does not mean that the children must also remain in quarantine with him. The child’s asthma was stable and according to a medical expert it was at no more risk than any young child. The co-parenting arrangement was reinstated immediately. However, nearly 8 weeks had passed before the children saw their mother in person again.
In another case, the mother decided to limit contact between the father and their toddler, because of risks posed to her own parents, with whom she was staying. Only if the father stayed outside and observed the 1.5 metre rule was he allowed see his child for short walks in the outdoors with the mother present. The court ruled that all parents have a right to physical contact with their children and can hug them as long as they do not have any symptoms. The court drew up a new temporary visiting schedule for the father in which contact is gradually expanded over the coming months.
In a third case, the father refused to return the child after a normal weekend visit. He stated that as schools were closed, and holidays are shared equally between parents, he did not have to bring the child back at the usual time. The court ruled that just because school was shut, does not mean that visiting arrangements had altered. The child still had home school and needed a fixed routine to study. In this case school closure does not equate to a holiday. The father was ordered to adhere to the normal arrangements.
The judgements have all been pretty clear so far. As long as nobody is actually ill and parents follow public health advice, then there is no reason why visits should not take place according to your usual arrangements.
Travelling for visits
If you live in The Netherlands, then you are permitted to travel with public transport to visit or drop off your child. As of June 1st, masks are obligatory in public transport, but there are no restrictions on necessary travel.
If you live outside The Netherlands, you may have been forced to cease all visits in the short term because of travel restrictions. The border between The Netherlands and Germany is open, but otherwise foreign travel is restricted. Citizens are being advised to only take necessary trips abroad and various coutries are still in full lockdown.
More freedom of movement is likely in the coming months. It is important to communicate when you or your children will be able to travel again. In the meantime, stay in contact as much as possible by arranging video calls and chats. If you cannot make arrangements with your ex-partner, then you may also need to take legal measures.
At Dutch Divorce Lawyer, we regularly deal with custody and visitation cases and would be happy to help you with any Covid-19 issues you are experiencing as a parent.