COVID-19 is here to stay. That is the message we hear on a daily basis from our President, our Governors and our Mayors. 2009 was the last pandemic, and the measures put in place then pale in comparison to the pandemic of 2020 in which we find ourselves and our children.
How to Handle Shared Parenting During the Pandemic
Because we are in new territory, most custody orders, shared parenting plans, and parenting time schedules do not include the “what ifs” parents face in a pandemic. As of March 15, 2020 in Ohio, the best advice our local court could provide was, “parents who have shared parenting plans or custody orders should continue to follow those orders to the best of their abilities and in the spirit intended by the court…They should follow the regular parenting schedule…unless their orders specifically address school closures. The parties should also communicate about the location, health, and welfare of the children daily….”
What do you do if there is a “Shelter in Place” Order? How does the “Stay at Home Order” issued by the Ohio Director of Health on March 22, 2020 affect parenting time and custody agreements? Under section 14.e. of that Order the Director said that “Essential Travel” includes travel “to transport children pursuant to a custody agreement.” In other words, parents should not use the Stay at Home Order to deny parenting time based on the Order’s travel restrictions.
What do you do if one parent contracts COVID-19? There are no “hard and fast” or “certain” answers. Instead, our practice group suggests your best answer is to do what our local court suggests – follow your parenting orders to the best of your ability and in the spirit intended by the court. What is the spirit intended by the court? The statutes that the court must look to when making parenting time decisions indicate that the court’s intended “spirit” is what is in the best interest of the children.
If there is a “Shelter in Place Order” or a “Stay at Home Order”, but you are permitted to travel out of necessity, then parenting time should continue with the parents arranging for exchanges of the children that respect “social distancing.” If one parent contracts COVID-19, in our opinion you can, for the best interests of the children, cease exchanging the children until the other parent is “cleared” of the virus. Could the other parent file for contempt against you because of the refusal? Yes, that could happen, but we believe you would have successful defenses against the claim of contempt given the current guidance of health professionals.
What if I Don’t Have a Court Order?
For separated parents who do not yet have court orders, the waters are even more murky. If you are currently making your way through the court process – or plan to imminently – know that the vast majority of court systems in central Ohio are delaying all non-emergency hearings for the foreseeable future.
Because of the uncertainty surrounding the future of COVID-19, no one can say for certain how long the courts’ hiatuses will last, how this extended break will impact each court’s case-flow, and how long it will be until new custody orders are issued. So, what do you do in custody ‘limbo’ for an indefinite period of time? The best advice we can give is to do what you believe to be is in the best interest of your children. However, understand that whatever decisions you make may need to be justified to a court, eventually.
As stated previously, if your children’s other parent has contracted COVID-19, a court will probably not reprimand you for ceasing exchanges of the children. But your concern must be genuine. If the court thinks that you are simply exploiting a global pandemic to justify withholding your children from the other parent, that will reflect negatively on you when the court considers future custody and parenting time orders.
When crafting custody orders, shared parenting plans and parenting time provisions, we often tell clients that we cannot predict every scenario. We’ve certainly never predicted a pandemic of this magnitude and all the scenarios within it that may affect parenting time. Recently, our firm has been speaking with clients on a daily basis to work through the scenarios and give advice to the best of our ability, all while keeping with the spirit intended by the court. Please speak with your children’s other parent to reach agreement on what the two of you will do in this time of pandemic parenting. Please be sure to keep the best interest of your children, and the spirit intended by the Court at the forefront of that discussion.
For information on what various domestic and juvenile courts in Ohio’s counties are saying/doing in response to the pandemic, please check your court’s website and continue to check it periodically for updated information.
Joanne Beasy, partner and chair of the Family Law practice group at Isaac Wiles, represents clients in dissolution, divorce, custody and like proceedings. Matthew Rinear, associate in the Family Law practice group at Isaac Wiles, has experience in divorce, custody issues, adoption and prenuptial agreements. www.isaacwiles.com