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May 28, 2024, 07:45:30 PM

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Visitation Denial Due To Sickness

Many non-custodial parents have been denied parenting time with their children because of claims by the custodial parent that the child is "sick".
Although this may indeed be a legitimate reason in some instances, the lack of any standards for what constitutes being "sick" has allowed some custodial parents to unfairly deny parenting time over and over again with this excuse.

A simple cold or flu is not sufficient reason to deny parenting time, since the child could be cared for equally well in the non-custodial residence. Common childhood illnesses are also not considered sufficient grounds to deny parenting time.

One "standard" that some attorneys suggest using to determine when sickness can take precedence over parenting time is that of the local school's "sick policy". This document sets forth the standards that the school uses to determine if a child is well enough to attend classes or must remain home. Generally speaking, if a child is well enough to attend school, he or she is well enough to visit.

Some specific items covered in a typical "sick policy" include:
  • Diarrhea, vomiting or stomach pains. Symptoms must abate for 24 hours before returning to school.
  • Dizziness, weakness, or difficulty in standing or walking unassisted.
  • Behavior changes or other signs that the child does not feel well enough to participate comfortably in the daily activities.
  • Temperature of 100F (38C) or above.
  • Runny nose, accompanied by fever and crankiness or difficulty breathing. The child must be kept home until he or she is acting better and is fever free for 24 hours.
  • Any physical pain serious enough to cause the child to remain bedridden, or any illness or disability that would worsen if the child was moved.
  • Common communicable diseases (measles, mumps, whooping cough, conjunctivitis, etc.). The disease must run its normal course before the child may return to school.
These guidelines seem reasonable for purposes of school attendance, however, the point that is often overlooked or ignored is that going to parenting time is not the same as attending school. During parenting time there are few (if any) demands placed upon the child, and any effect the illness may have on classroom behavior or learning ability is not an issue.

Most of the above illnesses (with the exception of 'serious physical pain') could be treated or managed just as well at either parent's home, and should not be considered reasonable cause to deny parenting time. If in doubt, consult with your child's physician for an opinion on whether or not the child is well enough to visit with the other parent. If the answer is 'yes', parenting time should not be denied.

Another often-overlooked point is that it's important for the child to know that the non-custodial parent is equally capable of caring for them in the same way that the custodial parent does. Caring for your child when they are sick can be a powerful bonding experience for the two of you, and shows the child that you are there for them when they need you. Although either parent alone may be able to care for a sick child, having both parents involved is almost always best. Having contact with both parents can give a child some much-needed reassurance during the times when they are not feeling well.

The child's feelings must also be taken into account. It's typical for a sick child to be cranky and unhappy; moving them to the other home may only intensify these feelings. On the other hand, children are prone to "cabin fever" just like adults- a change of environment may very well make the child feel better and help take their mind off their illness.

A child's illness is not considered sufficient reason for a non-custodial parent to be refused parenting time- both parents have not just the right, but an obligation to care for the child, while the child is ill. It is unreasonable to expect the custodial parent to take over all care of a sick child, just as it is unreasonable to deny parenting time due to minor illnesses. Note that if it's considered unreasonable to expect a child to travel to the non-custodial parent's home while ill, it is just as unreasonable to transport the child back to the custodial parent's home if the child becomes ill during the non-custodial parent's time.

Keep in mind that sometimes it makes sense logistically to have one of the parents take on more of the child's care when ill. When illness is a burden on both parents, it should be more shared than when it's a burden on only one of them. (Finding a caretaker for a sick child is tough for most working parents, but if either parent is at home & available or has a more flexible work schedule, that parent could reasonably be expected to have the child more during illnesses.)

When sharing care of an ill child, clear communication is crucial. If the child is on any kind of medication, knowing when the child took their last dose and/or when the next dose should be given is important information that parents should convey when exchanging the child. We suggest both parents keep a simple log of what medication(s) the child is taking and what the medication schedule is. This is especially important when the dose of a child's regular medication changes.

If parenting time is missed due to sickness, the non-custodial parent should have the opportunity to make the time up. It is time lost that the child and the non-custodial parent would normally spend together, and should be allowed to be made up within a reasonable amount of time.

Reasonable "illness contingencies" should be written into every parenting plan, taking into account that each parent's situation (travel, work schedules, etc) is different. If you don't have a provision covering illness in your Parenting Plan and the custodial parent repeatedly and unfairly denies parenting time by claiming the child is "sick", you may need to go to court and have the Parenting Plan amended so that this issue is properly addressed. (No matter what the reason, whenever parenting time is denied, always document it with the Denial Of Visitation Letter.

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