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Family Law Judge: No Mask, No Custody


The choice to wear a mask to mitigate the spread of coronavirus – or not – has become a highly-charged issue in the U.S. Now, it’s also finding its way into family law courts.

Recently in Florida, a circuit court judge issued an order denying one mother the right to see her son because she is “an anti-mask person,” and further had the “audacity” to boast about it on social media. Factoring into the ruling was the fact that the woman’s teen son has asthma, a condition that could put him at heightened risk of serious illness if he were to catch the virus.

Of course, this isn’t the first time the pandemic has taken center stage in child custody cases. Our New Brunswick child custody attorneys detailed in our family law blog challenges that essential workers faced in their custody cases, particularly in the early days of the pandemic. One case involved an emergency room doctor who lost custody of her 4-year-old child because she refused to stop treating patients who had contracted the novel coronavirus. An appellate court has since reversed that ruling, and the parents involved reached a mutual accord.

Balancing Children’s Interests, Parents’ Rights and a Pandemic

Still, there is no question that family law judges are facing unique challenges in balancing the health concerns of this disease – particularly when so much about it is unknown – with parental rights and the best interests of the children involved.

We expect to see even more of these disputes as parents may disagree about sending their children back to in-person classes. In New Jersey, many schools have reopened, but those that could not meet the state’s health and safety guidelines could begin the school year with remote-only instruction. All districts must provide a remote learning options for parents or guardians who request it.

But just as many schools that began all-remote instruction are planning to switch to a hybrid of at-home and in-class learning, a report from revealed that more than 100 schools have had reported coronavirus cases. That’s probably an undercount because there is no official statewide tally for the school districts. There have been at least 16 outbreaks involving 58 people who are believed to have been contracted the virus at school. The governor called this figure “reasonable” considering there are more than 3,000 schools in the state, though some parents disagree.

If separated parents disagree with each other on the amount of risk they’re comfortable taking, they can come to family court to resolve those differences.

It’s been our experience as child custody lawyers that the bar remains quite high for judges to alter parenting time schedules. A hypothetical reason is often not enough to deviate from the existing plan, particularly as children by-and-large haven’t experienced the most severe cases. But parents of children with pre-existing conditions may have a stronger argument.

In the South Florida custody case involving the mother who refused to wear a mask, The Sun-Sentinel reported the judge stated in court that visits with her son would need to be supervised and he wouldn’t consider enacting a long-distance custody plan until the pandemic has abated, a vaccine was available and the mother was vaccinated.

His ruling has drawn ire from libertarians and those who think mask mandates are a form of government overreach. An attorney representing the boy’s father explained he was simply trying to protect his son’s health, and there was more at issue than COVID-19.

If you are having a disagreement with your co-parent about your child’s education, health or the precautions that are being taken, discuss it with an attorney before making any decisions. Changing a parenting time order requires court approval to be enforceable.

Contact us at (732) 810-0034 or email us through our website.

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