Do parents who are subject to stay-at-home orders need to comply with court-ordered parenting time?
What happens if a parent, or a member of his or her household, tests positive with the coronavirus? What about when a parent or household member merely lives in a community with an outbreak, or if the parent or household member was exposed to an infected person who remains asymptomatic?
Given the importance that children of divorce spend time with both of their parents and that each parent has the opportunity to engage in family activities where provided for by court order, how certain must a threat of infection be to justify a parent deviating from court-ordered parenting time?
Failure to Comply With Court Orders
Obviously, the failure to comply with court orders subjects the non-compliant parent to contempt of court. Weighing that risk against the potential life-and-death consequences of COVID-19 exposure poses serious challenges for parents as the virus continues to spread. Gov. Andrew Cuomo has ordered all non-essential businesses to close, and for residents across the state, to stay home as much as possible in an effort to stop the spread of the novel coronavirus. The order was put into place on March 20, and will be in effect through April 15.
New York’s Guidelines
Does the New York Governor’s order legally restrict parents from complying with court-ordered parenting time?
Parenting orders are not expressly suspended during this period of time. This problem is apparently compounded by the shut-down of New York courts with respect to all “non-essential functions.” Parents are struggling to understand how movement-restricting orders impact court-ordered visitation. In many states, it appears that efforts are being made to carve out exceptions to strict shelter-in-place orders to allow citizens to travel “in compliance with court orders”, which may be interpreted as enabling court-ordered visitation. However, the extent to which jurisdictions are spelling out such exceptions varies widely between states and even counties.
The highly restrictive Illinois shelter-in-place order is specific in permitting visitation, as the order specifically defines “essential travel” as including custody exchanges between parents. In Pennsylvania, ten (10) counties are presently subject to more restrictive “stay at home orders” than the current statewide order, which (like NY) merely closes non-essential businesses and encourages staying at home and social distancing. Although these stricter county-level orders in Pennsylvania still appear to allow “travel required by court order” and/or “travel to care for elderly, minors, [and] dependents”, it is not entirely clear how the orders impact visitation on a county by county basis. Regardless, the multiple layers of orders in Pennsylvania illustrate the challenge faced by parents who are trying to understand whether travel restrictions impact their parenting plan.
Shelter-in-Place Orders May Supersede Visitation Orders
In general, most attorneys appear to agree that shelter-in-place and stay-at-home orders broadly supersede the ordinary rights of citizens as a matter of law. Accordingly, most attorneys would likely agree that a strict shelter-in-place order that includes no exception for “court-ordered travel”, or any reference to parenting time, would probably supersede a parent’s right to visitation as a matter of law. (Whether police would choose to prevent parents from visitation exchanges based on the law is a separate question.) Thus, one can imagine a parent effectively arguing that the shelter-in-place order legally supersedes the visitation order, such that non-compliance with a visitation order is legally justifiable.
When the crisis ends, courts may show some tolerance for parents who temporarily suspend visitation on a good faith belief that a shelter-in-place order prevented compliance with the visitation order or the non-compliant parent appeared to have a reasonable basis for believing the other parent and/or the parent’s household members should have been self-quarantining or limiting contact with the child.
Conversely, parents who simply cancel court-ordered parenting time based on a generalized fear of the virus could be found in contempt for violating parenting orders during the crisis. Courts are also likely to find that parents have an ongoing duty to comply with court orders when possible. To that end, a parent who unilaterally cancels visits based solely on shelter-in-place and stay-at-home orders should understand that an incorrect reading of the law could cause legal exposure in the future.
Criteria to Consider
In general, responsible parents must evaluate all of the pertinent facts and circumstances in making a decision whether or not the best interests of their child(ren) requires compliance with court-ordered parental access before deciding what to do in their particular case. Such considerations should include the child’s physical health, the child’s physical needs, an agreed protocol in connection with the logistics and duration of the access time to ensure the child’s protection and safety, the risk of exposure to infection in complying with the parental access order and any other reasonable factors existing in favor of or against compliance.
In cases where a parent, after consideration of these criteria, deems it in the child/children’s best interests to suspend physical access time, both parents should cooperate to allow for parenting time by video conference or telephone.
Of course, if the parents are unable to reach an agreement regarding compliance with a parental access order and the circumstances warrant it, one might seek court intervention by presenting an application (Order to Show Cause) in either the Family or Supreme Court to determine the matter as an “essential proceeding” within the “essential proceeding” definition provided to us by the State of New York Unified Court System in its Administrative Order AO/78/20, dated March 22, 2020. More particularly, this Administrative Order allows orders to show cause to be submitted in Family Courts and “emergency applications related to the coronavirus” in Supreme Courts.
The Best Interest of the Children
In conclusion, it seems that the parents and, if necessary, their respective attorneys should exhaust all efforts to come to an agreement which promotes the best interest of their child(ren) given their particular situation and only consider court intervention if it appears to be absolutely necessary and essential. In addition, it is important for any parent who feels that access may be or is being unlawfully withheld to keep a record of all communications and efforts with the other parent in order to enable their attorney to make a strong and compelling court application should it become necessary.
James J. Nolletti, Esq.
Founder, Nolletti Law Group
Fellow, American Academy of Matrimonial Lawyers
Fellow, International Academy of Family Lawyers