Part II: Supervised Parenting Time During COVID-19
In recent weeks, there has been much discussion regarding how parents should handle court-ordered parenting time schedules during the time of Coronavirus. While Governor Whitmer’s “Stay Home, Stay Safe” executive order offers some insight into how parents should handle schedules and exchanges for the time being, there is little to no guidance being proffered for parents who have a supervision requirement as a caveat to their parenting time.
If the supervision requirement provides for parenting time to take place in a public setting or a third party’s home, strict adherence would find most in violation of Governor Whitmer’s executive order and social distancing guidelines. Similarly, if the supervision requirement states that parenting time must occur at a facility, with most, if not all facilities that offer supervised parenting time services closed to the public indefinitely, supervised parenting time feels nearly impossible. However, this is not the time to take a step back; children need both their parents and all the support they can get. Instead, this is a time for creativity – coming up with solutions that ensure neither party is in violation of a court order and at risk for contempt charges, while also ensuring the parent with supervised visitation has appropriate access to the children so relationships can be sustained in a comfortable and safe environment for all.
What is Contempt of Court?
Essentially, if a party is held in contempt of court it means that his or her actions or inactions are in violation of a court order (civil contempt), or that his or her behavior disobeys, offends, or disrespects the authority or dignity of the court (criminal contempt).
Civil Contempt. The court’s goal in finding a party in contempt is to effectively force the party in violation to comply with the court’s order. For civil contempt findings, most common in family law cases, the court may impose any of the following: (1) a conditional jail sentence; (2) fines and costs; (3) damages; and (4) attorney fees. The findings in a civil contempt hearing are purgeable or curable, meaning that the sanctions can be lifted once the violating party becomes compliant with the court’s order.
Criminal Contempt. Criminal contempt proceedings involve past wrongdoings that cannot be made right by the wrongdoer; therefore, a criminal contempt conviction cannot be cured. For criminal contempt convictions, the court may impose: (1) a fixed jail sentence of up to 93 days; (2) a fine of not more than $7,500; (3) an optional probationary term; (4) damages; and (5) attorney fees.
You should not be held in contempt for failing to do something in a court order that has become a literal physical impossibility.
That said, it is generally frowned upon to engage in “self-help” in these types of circumstances and in some instances doing so could rise to the level of contempt. This means it is important to avoid unilateral decision-making as it relates to your children. An important general principal to keep in mind is that you have no more authority to deviate from the order and drop the supervision requirement than you do to unilaterally change the schedule altogether, so find a balance.
Communicate with the other parent to address concerns, propose various options, and demonstrate to the court that you have made every attempt to appropriately facilitate the parent-child relationship, while adhering to court orders to the fullest extent possible given the circumstances. Document these communications.
Depending upon your individual circumstances and prior court orders, here are some possible solutions to assist you in getting the conversation going:
In fact, the State of Michigan published a FAQ section relative to Executive Order 2020-42 which states that, “Court ordered parent child visits related to a child custody arrangement continue but these visits need not always be in person. Alternatives including telephone and videoconference are acceptable.” Remember: the executive order does not replace your own court order, so if you want to change the duration or frequency of visits, you need to file a motion with the Court.
Above all, parents need to be understanding and cooperative with one another now more than ever. This may seem like an obvious, and “easier said than done” type mantra, but with courts less accessible while the executive order remains in effect, barring an emergency requiring immediate attention, it really is the most effective way for two household-families to operate during these uncertain times.
Remember, every case is different, so these suggestions might not be workable solutions for your family. To best avoid issues arising once court operations fully resume, ask a family law attorney for advice specific to your facts and circumstances.