Exercising visitation rights during the federal corona measures

COPMA Visiting Rights Recommendations of 3 April 2020

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Many parents, authorities and institutions are unsure whether and how the existing regulations on visitation rights can be implemented during the corona pandemic. To address these uncertainties, COPMA has issued recommendations.

Initial situation

During the corona pandemic, special hygiene and behavioral rules apply and social contacts are to be kept to a minimum.
Ordinance 2 on measures to combat the corona virus of March 13, 2020 (from April 2, 2020) does not prohibit contact between the child and the two parents. As childcare services can be maintained, blanket suspensions of all contact with visitors appear disproportionate; it is necessary to evaluate the matter on a case-by-case basis. Parents are responsible for implementing the federal guidelines and recommendations. Parents have to decide on a case-by-case basis, with the child's involvement, how to maintain parent-child contact during the corona pandemic. Depending on the mandate, the counselor may support parents in working out amicable solutions, but it is not the counselor's job to issue regulations. KESB only intervenes if contact or lack of contact in an individual case poses a concrete threat to the child's well-being. In such cases, KESB may issue instructions or regulate, limit or withdraw contact.

Principle: Visit contacts continue to take place

The corona pandemic does not fundamentally change the child's right to adequate contact with both parents. Especially in uncertain times, it is important that the child can find reliable and continuous support in contact with the father and mother as his most important caregivers.

The recommendation to keep social contact to a minimum does not refer to the nuclear family (parent-child relationship), even if the parents live in separate households. The children should also be able to maintain contact with both parents during the corona pandemic. If there is a regulation on visitation rights or a court decision on visitation rights, this will in principle continue to apply despite the corona pandemic.

When it comes to the question of how best to organize the contact between the child and the parents in view of the needs of the Confederation, the following questions play an important role, among others: How does the child get to the other parent? How can contact with people other than the parent with visitation rights be avoided as far as possible?

The special situation requires parents to make more intensive arrangements, to prevent mutual understanding, special tolerance and flexibility.

Exception: Contacts are made via alternative forms of contact

If the child, a parent or another person living in a parent's house is in self-isolation or quarantine due to a positive test or clear corona disease symptoms, contact must be ensured through alternative forms of contact . In particular, telephone contacts and letters are possible, as well as contacts via electronic means (mail, chat, whatsapp, SMS, social media, etc.) or video telephony (Skype, Facetime, Zoom, etc.). There is no change to the noncustodial parent's right to information and disclosure. In these cases it is not a question of establishing if, but of how the contact can take place.

The assessment of whether a person shows symptoms of illness must be assessed by each adult for himself and cannot be done by the other parent. In case of doubt or disagreement, a written medical evaluation is decisive and must be obtained from the parents.

To meet the child's individual needs, the child must be actively involved in the decision-making process. It must be explained to the child in an understandable way why she cannot meet the other parent at the moment and what contact alternatives are available.

Follow-up of visiting contacts is generally out of the question, as contacts continue to occur through alternative forms of contact.

General risks - such as the possibility of being involved in a road accident en route, or being involved in a road accident despite taking the precautions.

Special cases

• Visiting foreign contacts
If it is not possible to cross the border, parents should seek alternative forms of contact, including children.

• No official adaptation of existing regulations on visitation rights
Since the corona measures are temporary measures, official adaptations to the regulations on visitation rights should generally be avoided.

• Shared Custody / Alternating
Custody Shared custody is not affected by federal measures. The foregoing on access rights applies mutatis mutandis. If one parent is ill or belongs to a risk group, it should be examined whether the other parent can provide more care. (cf. Art. 2 para. 6 COVID-19 Loss of Earnings Ordinance).

• Rules on visitation rights in institutions
The management of social facilities remains the responsibility of the cantons (cf. Art. 1a of the COVID-19 Ordinance 2). The cantons can issue regulations on contact with children in institutions (cf. www.casadata.ch > COVID-19). Any restrictions on visitation rights should be discussed with the child and parents on a case-by-case basis and alternative means of contact sought. A social institution may, in particular, restrict visitation rights even if this has been ordered by the ARP (the protection of children and domestic personnel has priority).

• Regulation on visiting rights in accompanied visits meetings Accompanied
visits are social structures which, pursuant to art. 6 para. 3 lett. k of the COVID-19 regulation n. 2, are not affected by the closure obligation and should therefore in principle remain open. If services are still closed or unavailable, parents must seek alternative forms of contact with the child. Or the parents agree on an alternative form of accompaniment.

• Child support contributions
The structure of the contact details must be considered independently of the obligation to pay child support contributions. The obligation to pay maintenance contributions continues to exist during the Corona pandemic. Due to the temporary nature of the measures, a change is generally out of the question.

• Curfew
If the Federal Council were to impose a nationwide curfew, the situation would have to be reviewed.