COVID-19 Issues Related to Parenting Time

On March 23, 2020, Governor Whitmer issued Executive Order 2020-21 COVID-19 ) , which requires all non-essential workers as defined in the order, to Stay Home , Stay Safe for the next three weeks, starting at midnight on March 23, 2020.

The order provides a list of exceptions to the rules, including addressing compliance with custody orders. Section 7(b)(4) states:

“Individuals may also travel:

  1. To return to a home or place of residence from outside this state.
  2. To leave this state for a home or residence elsewhere.
  3. To travel between two residences in this state.
  4. As required by law enforcement or a court order, including the transportation of children pursuant to a custody agreement.”

Further, on March 16, 2020, the Michigan State Supreme Court issued a Statement on Matters Concerning Children which provides in relevant part as follows:

“The Supreme Court wants to remind parents that all court orders for a child’s custody, parenting time and support are still in force. Only a new court order can change that. Parents should continue to follow their court orders.”

Reading the Governor’s Order and the Michigan Supreme Court’s Statement together, parents should know that all parties are to comply with all existing custody, parenting time, and support orders unless and until they are changed. The Governor’s Stay Home, Stay Safe Order does NOT prohibit parents from transporting their children to the other parties’ residences to comply with custody and parenting time orders and agreements.

When traveling to parenting time exchanges, parents should carry a copy of the relevant custody or parenting time order or agreement with them at all times to show to any law enforcement officer who may inquire as to why that party is not at home.

With all that said, many clients still have questions about the safety of the children and others as a result of multiple transfers back and forth for parenting time. Further, some clients have concerns if one of the parents or someone in the other parent’s house is a medical professional or in a position to put them at greater risk of infecting the child with COVID-19. Unfortunately, I cannot give definitive advice on this topic because we just cannot know how the family courts will resolve contempt motions regarding COVID-19 related denials of parenting time. As always, different family court judges and different appellate panels, may view and decide the same fact patterns very different ways.

Therefore, I am neither willing to give blanket advice to clients to blindly follow valid court orders believing that their children are being put at risk, nor am I willing to advise clients not to follow valid court orders. As always, you must ultimately balance your willingness to be found in contempt of court for violating a court order with your belief that you may potentially be putting your child at risk.

In making such decisions, clients should consider the following, which may be relevant to the family courts when deciding contempt motions regarding denial of parenting time related to COVID-19:

  1. The mere fact that this is a pandemic does not seem reason enough to deny parenting time.
  2. Did the parent denying parenting time explicitly explain why, including exact reasons, that they were denying parenting time in writing at the time they did so.
  3. Did the parent denying parenting time offer additional and daily electronic parenting time and/or make-up parenting time at the time they denied parenting time.
  4. If the other parent, or someone in their household, has COVID-19, this seems to be a good reason to deny parenting time, as long as that parent offers make-up parenting time when they recover.
  5. If the parent denying parenting time relies on the reason that they believe the other parent is at greater risk of contracting COVID-19 and infecting the child, that parent should also be (a) offering make-up parenting time, (b) providing access to daily electronic or video communication with the child, and (c) also be practicing extreme social distancing for themselves and the child.

Of course, this will all depend on the unique factual situation everyone is facing. As always, if you have any questions, please call me at at (248) 565-3800 discuss your particular situation.

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