Can I block my ex-spouse from visitation?

Over the past few months, the COVID-19 pandemic has disrupted society on an unprecedented level. Under Governor Brown’s executive order to shelter-in-place, schools and non-essential business have been indefinitely closed. Oregon parents were told that their children would not return to school for the remainder of the 2019 –2020 year. These seemingly extreme actions were an early attempt to combat the spread of the novel coronavirus. And, by most expert accounts, they seem to be working.

Given the Governor’s shelter-in-place order, and the very real safety concerns about unnecessarily going out into public, many are wondering about whether they can refuse visitation to their ex-spouse. Last month, the Oregon Statewide Family Law Advisory Committee met to come up with some recommendations for parties dealing with this very issue. The Committee consists of judges, trial court administrators, mediators and evaluators, attorneys, family court service providers and representatives from state agencies. While the Committee’s recommendations are not necessarily legally binding, they do provide guidance to judges who, in the absence of other compelling reasons, will likely follow the recommendations.

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).

That said, the Committee also explains that parents with visitation rights must not violate the Governor’s shelter-in-place order, and that parents should consider safe places to spend time with their children, such as large parks(state parks, however have been closed). While travel is generally prohibited under the stay-at-home order, caring for minors is considered an “essential activity,” so parents who need to travel to see their children are not precluded from doing so. Of course, the Committee highlights the importance of following social-distancing protocol during travel and exchanges.

What is not fully covered under the Committee’s recommendations is a situation in which the custodial parent is concerned that the other parent has been exposed to the coronavirus, or that others in the home have been exposed. While COVID-19 is not in general a reason to deny visitation, individual circumstances may vary. A request to restrict access would have to be based on an apparent “immediate danger” to the child.Such requests would be strictly scrutinized and are inadvisable unless there is a valid, verifiable fear for a child’s safety. 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.”