Can I be blocked by my ex-spouse from visiting our children?

The COVID-19 pandemic has significantly changed American society seemingly overnight. As of last month, Governor Brown issued a shelter-in-place order requiring all schools and business to close their doors indefinitely to help curb the spread of the virus. For those parents who do not have primary custody of their children, but have visitation rights, this presents an especially difficult time. Due to the closures, both parents and children are home and able to spend more time together than usual. However,due to the dangers involved with unnecessary travel and visits to public places, many parents are meeting resistance from their ex-spouses when it comes to enforcing their visitation rights.

A few weeks ago, the Oregon Statewide Family Law Advisory Committee met to come up with recommendations to parties dealing with this very issue. The Committee was made-upof judges, trial court administrators, mediators and evaluators, attorneys, family court service providers and representatives from state agencies. While the Committee’s recommendations are not legally binding, they provide guidance to judges.

At their most basic level, the recommendations encourage parents to work within their existing parenting plan as much as possible. However, not all parents have relationships that lend themselves to this collaborative approach. And if a parent with primary custody is attempting to prevent visitation, it should be assumed that collaboration is not likely.

When it comes to Oregon child visitation, the Committee recommends that parents follow their parenting plan as closely as possible. The Committee notes that:

COVID-19 is not a reason to deny parenting time. Unless otherwise ordered by the court, parents are considered fit to care for their children and make decisions regarding the day-to-day aspects of parenting while the children are in their care. This day-to-day care includes following the Oregon Health Authority and your County Public Health directives regarding social distancing and sanitation-related measures (such as frequent hand-washing).

Thus, absent a safety issue, a parent with primary physical custody of a child should not deny visitation. Additionally, because Governor Brown’s executive order considers the care of a minor child to be an “essential activity,” parents are not prohibited from seeingtheir children.

Of course, there may be valid reasons for a parent to deny visitation during the pandemic. For example, if the parent seeking to enforce visitation has been exposed to people who have tested positive for the virus or has been living with someone who has contracted the virus. However, before a parent denies visitation, there should be some verifiable basis for their belief thatallowing visitation would put the children in jeopardy. Notably, the Committee states that “parents are not permitted to deny parenting time based upon the other parent’s unwillingness
to discuss their precautionary measures taken, or belief that the other parent’s precautions are insufficient.” When physical visitation is not possible due to real safety issues, virtual visitation should still be made available by the custodial parent.