The COVID-19 pandemic has been stressful for everyone. It has been especially stressful for separated and divorced parents who are struggling to make custody and visitation arrangements work. Understandably, there have been some disagreements–and litigation–on this subject. But as with any matter involving minors, it is critical to remember that a court will always look to put the “best interests of the child” ahead of the wishes of the parents.

A recent decision from the Maryland Court of Special Appeals, Alexander v. Alexander, provides a helpful reminder of this principle. This case involves the divorced parents of a teenage son. During the parents’ divorce, there was extensive litigation on the subject of custody and visitation. Eventually, a circuit court judge granted sole legal and primary physical custody to the mother while awarding certain access (visitation) rights to the father.

At the outset of the COVID-19 pandemic, however, the mother notified the father that she planned to keep the son at home with her, notwithstanding the father’s access rights. The mother noted the son suffers from diabetes, which made him particularly vulnerable to complications should he contract COVID-19. The mother’s message said she would “discuss makeup time once it [was] safe to do so.”

The father claimed the mother had no right to violate the court’s access order. The mother replied that she had sole authority to “make medical decisions” for the child, which included “the right to ensure his safety by halting, temporarily, [the father’s] right to visitation with his son.”

The parents continued to argue–and litigate–this point for some time. As relevant to the appeal, the father said he was legally entitled to “makeup time” to account for any visitation periods missed during the pandemic. The judge denied this request, nothing “this isn’t a contract case.” In other words, the law did not require the mother to “make whole” the father for any loss of visitation. What mattered was the best interests of the child. At the same time, the judge did warn the mother that she was not allowed to unilaterally alter the child’s visitation schedule without the court’s permission, and that she basically exceeded her decision-making authority in the first place.

The father, still dissatisfied, challenged the premise that he was not legally entitled to make-up time. But the Court of Special Appeals sided with the trial judge. While Maryland law does give a judge the authority to order make-up time, it is not “required to exercise that option” when it would be inconsistent with the child’s best interests. In this case, the appellate court said the decision not to award make-up time was “understandable” given the potential disruption to the child’s established schedule.

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This article has been provided by the Law Office of Robert Castro. For more information or questions contact our office to speak to an experienced lawyer at (301) 870-1200.

Source:

https://www.courts.state.md.us/data/opinions/cosa/2021/1320s20.pdf