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Does Illinois’ Shelter In Place Order Affect Child Custody Agreements?

Article written by Attorney Kevin O'Flaherty
Updated on
April 13, 2020

In this article, we’ll answer questions like:

  • “Is it safe for my child to travel between households during the Covid-19 outbreak?” 
  • “What should I do if I’m concerned my child might get Covid-19 at her other parent’s house?”
  • “Can I petition to have my child stay at my house until the risk of Covid-19 has decreased”
  • “What happens if we both get sick with Covid-19 and can’t care for our child?”
  • “What happens to our child custody agreement during school closures?”

Schools Closures

Schools in Illinois and Iowa began closing last week in response to the growing danger and uncertainty over the novel coronavirus, leaving the childcare fate of millions of children in limbo. But what about the children of parents going through a divorce or those who already have a child custody order in place? To start, most child custody orders contain provisions that account for school closures. Since just about every school takes some time off over certain holidays and the summer most parents have probably already worked this out and just need to refer to their custody order for clarification.

However, if the child custody order does not account for an extended period of school closures, or only contains language referencing specific holidays, seasonal breaks, etc, the parents may need to work out a plan. There may be other provisions that are important to address during times of uncertainty such as whether the custody order contains language stating that one parent has the first right of refusal if the other parent requires child care for more than eight hours. 

Sickness and Quarantine

Most child custody orders have provisions that explain what happens if one parent or the child becomes so ill that they need professional medical care or are unable to perform everyday physical functions. However, a provision for quarantine due to sickness is likely not in many child custody orders. Hopefully, the parents can amicably work through a plan that puts the child’s best interest first. But, if the parent’s situation is one in which communication between the two parties is impossible or legally barred then an attorney should be contacted immediately and a plan worked out.

A plan also needs to be in place if the child becomes ill. Parents should ask each other, what’s the best place for the child if they have an extended illness? Will the normal parenting schedule be followed if the child falls ill? If necessary, who will stay home with the ill child? If both parents have an essential job what happens if the child is sick? 

Do Shelter-In-Place Orders Directly Affect Custody Orders?

No, so expect to follow your current custody arrangement. However, if one of the parents has a job that puts them at high risk for infection, or refuses to comply with social distancing orders, or continues to take the child on playdates or into public areas, it warrants a conversation between the parents and possibly a new modified custody agreement.

If the parents can’t agree they should seek out a family law attorney and consider obtaining an emergency temporary child custody order. Custody decisions made by the court are determined by a number of factors, one being the child’s best interest and safety. If, for example, the custodial parent is practicing proper social distancing and shelter-in-place habits and works from home while the other parent continues to go out in public or has a job that is a high risk for infection, the judge may rule find that it is in the child’s best interest to limit interaction with the high-risk parent. This ruling would be even more likely if the child has preexisting conditions that place him or her at a higher risk of serious illness due to Covid-19.

Bottom Line

For most families, their current child custody agreement will remain unchanged. If the child normally goes between two households she will continue to do so unless there is clear evidence of a risk to the child’s well being. Parents who are concerned about their child’s safety when staying with the other parent can discuss their options with a lawyer. And while many courts around the country are closed, teleconferences are available for legal needs and local Family Law courtrooms remain open to handle “emergency orders.”

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