Following a divorce or separation, the reality for many children becomes a shuffling of back-and-forth between each parent’s home based on a court-ordered parenting time schedule. But what happens if one parent, or someone that parent came in contact with, becomes infected with the COVID-19? What if the other parent lives in a different state? Is self-quarantine reason enough to fail to comply with court-ordered parenting time?
Failure to comply with court-ordered parenting time always poses a risk of contempt for parents, meaning that one parent could seek criminal and civil sanctions against the non-complying parent along with enforcement of the parenting plan. However, one of the key defenses to a contempt charge is the present inability to comply with court orders. Events such as school closures, flights canceling, and travel bans can all (arguably) impact a parent’s present ability to comply with court orders.
Because this coronavirus is so novel, there are no clear answers to when one parent may be justified in withholding court-ordered parenting time based on fears alone. Of course, if there is clear evidence a parent or member of that parent’s household is infected, common sense seems to take the reins.
Fear alone is not enough. Some factors to consider in making the decision whether to withhold parenting time are:
”¢ Whether the non-infected parent lives in a community with an outbreak;
”¢ Whether members of the non-infected parent’s household have been exposed;
”¢ Whether there are especially vulnerable or at-risk household members in the non-infected parent’s home;
”¢ Whether community containment efforts are in effect;
”¢ Whether the child’s life has been impacted, such as closed schools
However, the risk of choosing to withhold parenting time varies on a daily basis with new updates on the coronavirus. While the decision to withhold parenting time may have seemed reasonable on Monday, the parent’s actions may just as likely be seen as unreasonable by Friday. It is unclear if a court can order a parent to be tested for the coronavirus.
Choosing to violate a court order is never risk-free. If parents cannot agree on how to handle exchanges, one parent can file an emergency motion with the court seeking an order permitting a temporary suspension of parenting time.
Another option for parents trying to limit the child’s exposure to a possibly infected parent is to file an emergency motion to restrict the infected parent’s parenting time. However, there must be a risk of imminent harm to the child; hence why fear is not enough.
On the other hand, if a parent was wrongly withheld from his or her parenting time, there are remedies that can be addressed through enforcement of the parenting time. For example, courts can award make-up parenting time to the withheld parent.
However, if the courts close due to the coronavirus, there may not be any recourse until after the doors reopen. Check with your local government offices for an updated list of closures. Call our firm at 720-542-6142 if you have any questions regarding your current parenting time agreement and would like to speak with one of our attorneys or fill out our form here.