Covid-19: Divorce and joint custody of children

A friend who is separated and in the process of divorcing her husband has an eight year old daughter. As part of the court ruling on separation she is domiciled with her mother but her mother is required to take her 40km away to an airport to, either hand her over to her father or put her on a plane as an unaccompanied child to the other side of the country, depending on where the father is at the time, for all school holidays except summer which is split. Has this court judgement been overtaken by the Covid-19 regulations? Does she have the right to keep the child with her during the Easter break?

25 March 2020

The situation over what to do in relation to joint custody of children during the Covid-19 period is unclear and lawyers are not in agreement over the interpretation of the situation.

It seems people can take children from one parent to another, by car if necessary, according to each family’s joint custody situations, by ticking imperative family reasons on the confinement form where garde d’enfants is listed, and writing the name of the child or children on the form.

The Minister for Equality, Marlène Schiappa has tweeted that the four reasons for leaving home on the form are work, health, shopping and garde alternée des enfants, even though these precise words do not appear on the form.

Irish lawyer in France, Niamh Garvey who works for Paris based domestic and international family law specialists Mulon Associés, says though that the Minister’s tweet is not helpful, and they would like to see clearer guidelines from the government.

She says even lawyers cannot agree: “The legal interpretation of garde d’enfants on the form is unclear as the legal term for joint custody is not garde alternée but résidence alternée. Garde d’enfants on the form is more likely to be there for people looking after other people’s children when they have to go to work.

"As the situation is confused, some divorced parents are using Covid-19 as an excuse either to refuse or to demand to look after their child. It is not an easy situation.

"We try and persuade our clients to do what is the best for the child and for other people. We know children are carriers so if the child is moving to another parent’s home with several other people in it, it might not be a good idea.

"However, to deny access during this period to a father living nearby on his own would also be difficult. Each situation is different. Parents have to exercise their sense of responsibility to do what is right under these unusual circumstances, which are designed to keep movement of people to a minimum.”

In answer to the reader question above, she thought it was clear that you could not expose a child to the risk of air travel at this time, and that the father would have no grounds to make an official complaint.

It is highly unlikely that there will be any penalties now or in retrospect for parents making sensible decisions in these unusual circumstances, even if they mean the joint custody agreement is not strictly adhered to during this period.

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