No mask, no child custody. COVID-19 is a new factor in family law

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No mask, no child custody. COVID-19 is a new factor in family law.

By Rafael Olmeda

Melanie Joseph wants to see her son, but a judge won’t let her — for no reason except that she won’t wear a mask.

Joseph’s 14-year-old son has asthma, a condition that could put him at risk of contracting COVID-19 during this pandemic, court filings show.

Broward Circuit Judge Dale Cohen called the mother an “anti-mask person” who had the “audacity” to brag about it on Facebook.

Conservatives take issue with the decision, but it illustrates how judges in family court now must consider the health risks of COVID-19 on top of juggling the interests of feuding ex-spouses, single parents and reluctant child-support payers.

COVID first made family law news in South Florida early in the pandemic, when an emergency room doctor treating coronavirus patients was stripped of custody of her 4-year-old daughter.

An appeals court quickly overturned the decision, and the child’s estranged parents eventually resolved their custody disagreement.

The doctor’s attorney, Steven Nullman, conceded that judges face a challenge when balancing parental rights and health concerns.

“There are so many unknowns with this disease,” he said. “Making the right decision is not easy.”

Other cases followed across the country, most involving at least one parent working on the front lines of the crisis. An Orlando woman didn’t want her ex-husband, a firefighter newly engaged to an emergency room nurse, to share custody of their son. The judge sided with the father. And in a Deerfield Beach case in April, a dermatologist had to fight for visitation with his 6-year-old son.

Broward Chief Administrative Judge Jack Tuter said he expects COVID-19 to come up in family cases for the foreseeable future.

“You might have one parent who’s casual about the risk and the other who’s hyper-careful,” he said. “We’re going to see them coming to judges to resolve their differences.

“I think we’re going to see more cases arise when schools open, depending on what happens next with the virus.”

Judges have been patient in considering both sides of coronavirus cases, said Nicole Alvarez, who practices family law mainly in Broward and Miami-Dade.

“The bar is still pretty high for a judge to change time-sharing schedules,” she said. “From my experience, judges are not going to deviate from agreements for hypothetical reasons.

“You don’t get to say you live in a low-risk area and you don’t want to let the child visit Miami or some other area with more cases. Unless someone comes out positive, judges are sticking with the existing agreements.”

That doesn’t mean they’re not willing to step in when they think the child’s health might be at risk.

Joseph, who moved to North Carolina from Coral Springs at the outset of the pandemic response, drew Judge Cohen’s ire by posting a picture of herself, maskless, in the waiting room of her oral surgeon’s office in June.

“She’s one of those anti-mask people and she’s got the audacity to post that on social media,” the judge said. “She’s going to wear a mask. If she doesn’t, time-sharing is not going to happen.”

Cohen’s pointed criticism came in an online hearing Sept. 8 and prompted Joseph’s attorney, Meaghan Marro, to ask him to remove himself from the case, which has dragged on for 13 years (the child at the heart of it is 14). Cohen declined.

Melanie Joseph, formerly of Coral Springs, posted this selfie with the caption "no mask for this girl" on social media, drawing the ire of the Broward judge handling her custody case. She says she was alone in a doctor's waiting room in North Carolina, where there was no mask requirement at the time.
Melanie Joseph, formerly of Coral Springs, posted this selfie with the caption “no mask for this girl” on social media, drawing the ire of the Broward judge handling her custody case. She says she was alone in a doctor’s waiting room in North Carolina, where there was no mask requirement at the time.

The judge said in-person visits would have to be supervised because he doesn’t trust Joseph, 43, to wear a mask. And he would not consider a long-distance parenting plan — which outlines each parent’s rights when they don’t live in the same state — between Joseph and her son until the COVID crisis has passed.

“When this pandemic is over and there’s no cases and there’s a vaccine … the mother is going to need to get a vaccine as well. When I have proof that everybody’s safe and the child’s not at risk or danger, then we can talk about a long-distance parenting plan.”

The judge’s comments raised eyebrows among some right-wing libertarians who blame coronavirus for what they believe is government abuse of authority.

“You see them using opinion grounded in science to justify government overreach,” said Tho Bishop, editor at the Mises Institute, a splinter of the Cato Institute. “They’ve far overstepped the justified power of their office under the premise that we’re in this emergency.”

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