By Jordan M. Gregro, Esquire

The Covid-19 pandemic has created new and unique issues with respect to physical child custody. Among these issues is whether healthcare workers are able to maintain primary physical custody of their children. Many doctors, nurses, and other healthcare professionals have legitimate concerns that they will be stripped of custody simply because of the nature of their employment.

In a non-precedential decision, the Pennsylvania Superior Court put those fears to rest, as it affirmed a Bucks County trial court’s decision to award the mother, who is a nurse anesthetist, sole legal and primary physical custody of her children. I.A. v. K.F., No. 1723 EDA 2020, 2021 WL 832578 (Pa. Super. Ct. Mar. 4, 2021).

In I.A. v. K.F., the father filed an emergency petition requesting sole legal and sole physical custody at the height of the pandemic. In his petition, the father argued the mother’s job put the children at a higher risk for contracting Covid-19, and he alleged the children returned from the mother’s house with Covid-related symptoms. The father also claimed he was better able to help the children, and particularly their younger child with special needs, with virtual learning. He pointed to his graduate degree in computer engineering and his ability to work from home to support his claim.
The mother argued she should maintain primary physical custody of the children, as she was taking all safety precautions recommended by the CDC, and she did not directly interact with Covid patients. Specifically, she testified she does not work on a Covid-19 unit; all patients are screened; she is provided new PPE daily; and she practices social distancing and wears a mask at all times. Additionally, she took a leave of absence to be home with the children at the start of the pandemic, and she planned to take another leave in the fall. She indicated the father never reached out to her regarding his safety concerns, and he never took the children to the doctor for Covid symptoms. The mother sought sole legal custody due to the father’s refusal to communicate with her and to sign important forms for the children.

The Superior Court concurred with the trial court’s decision to award the mother sole legal and primary physical custody, as well as its extensive analysis of the child custody factors enumerated in 23 Pa. C.S.A. §5328(a). With regard to the father’s Covid argument, the Court found the father failed to present any evidence to support his claim that the mother’s employment put the children at a higher risk. Specifically, the “[f]ather did not provide any specific evidence or testimony about Mother’s job, her job-related duties, her exposure to Covid-19 patients, the safety protocols at the hospital or Mother’s lack of compliance with them.” Based on the testimony presented at trial, it was clear that the mother was following “all safety protocols to keep the children and herself safe during the pandemic [in addition to] taking every precaution of which she is aware.” The Court agreed with the lower court’s assessment that father’s concerns were “exaggerated and merely a pretext for seeking primary physical custody.” Further, the mother had the same ability to provide for the educational needs of the children.

The I.A. v. K.F case provides insight into courts’ thinking with regard to the ability of healthcare workers to maintain primary physical custody during the Covid-19 pandemic, including those with children with special needs. I.A. v. K.F. makes clear that healthcare workers generally should not be treated differently than other parents simply because of their profession. The burden of proof lies with the parent challenging custody to show that the parent working in healthcare is not following safety precautions or does in fact put the children at a higher risk of contracting Covid.

This case is also special in that it indicates a parent’s ability to work from home is just one factor in determining an award of physical custody. Many parents fear they will be at a disadvantage if they are unable to work from home full-time. I.A. v. K.F. illustrates that the fifteen custody factors outside of the parent’s availability to care for the children, carry as much weight, if not more weight, in the courts’ physical custody determination.

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As issues related to Covid-19 are novel and complex, it is important to consult an attorney if you are involved in a child custody dispute during the pandemic. The family law attorneys at Shemtob Draganosky Taylor, PC are well equipped to handle your needs and to assist you both inside and outside of the courtroom.

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