As the world scrambles to control the COVID-19 pandemic and leaders urge social distancing and self-isolation, co-parenting families are finding themselves in challenging situations. Parents are asking whether children: Should continue to transition between households; Be able to attend family birthday parties; Have friends over to visit; Attend child care; and participate in other daily activities. Other layers of complications add to the uncertainty, such as parents who are essential workers who continue to work outside the home, particularly in the medical field, and parents or children who are immunocompromised.
Parents naturally want to protect their children. At a time when the news broadcasts the daily “death toll” of the pandemic, the need to protect your children may feel overwhelming. At the same time, their other parent may be experiencing an equally overwhelming need to hold and parent your children, while your children may crave routine and normalcy. All of these conflicting needs, while valid, swirling in the unknown and new world of the pandemic, can lead to conflict as parents may have differing opinions as to what is in the best interests of their children. Children in the meantime, already unsettled by the events unfolding around them, are closely watching their parents for security and comfort and may feel added pressure and anxiety if their parents are at odds with one another.
Normally, when parenting time conflicts arise, parties and their attorneys turn to negotiation, mediation, and when all else fails – the court system. But with limitations on the ability to remotely negotiate/mediate and the closure of all non-essential and non-emergency court proceedings, parents are being left to their best behavior and are asked to dig deep, remember what brought them together in the first place, love their children more than their conflict, and focus on the needs of their children.
On March 16, 2020 the Michigan Supreme Court (MSC) issued a statement on matters concerning children in light of the pandemic and school closures. The directive was clear and simply that “all court orders for a child’s custody, parenting time and support are still in force” and that “[o]nly a new court order can change that.” Governor Gretchen Whitmer’s March 23, 2020 Executive Order No. 2020-21, echoes the sentiment as it defined travel for parenting time as essential travel (Section 7.b.4, allowing travel “[a]s required by … a court order, including the transportation of children pursuant to a custody agreement.”)
In further explanation of the subsequent order, Executive Order 2020-42, Gov. Whitmer 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.” Parents who are already reluctant to turn over their children may be tempted to use this Order in support of their desire to deny in-person parenting time. This is risky. By doing so, those parents are violating a court order and consequently putting themselves at risk of later being found to be in contempt of court for violation of their court-ordered parenting time. The Constitutionally mandated “separation of powers” doctrine means that an Executive Order from the Executive Branch does not supersede a specific order issued in a case by the Judicial Branch. What does this mean to your family? Although parents are required to continue to follow the court orders and transport children for the purposes of parenting time, they should take heed of the Governor’s statement and consider telephone and videoconferencing instead if it makes sense for their particular family.
Aware that our quickly changing current events will likely require flexibility in co-parenting in ways not anticipated by current court orders, the MSC urges parents to cooperate with one another to further their children’s best interests. Also, having anticipated that further restrictions on transportation and personal movement were forthcoming, the MSC continued on to say, “[i]f future government decisions restrict travel or, if a child’s safety is an issue, parents should work together to keep the child’s access to both parents as close to the normal arrangement as possible.” However, if parents are unable to work out arrangements among themselves the court orders will continue to control. The MSC also recently published further guidance on the subject, “FAQs about Custody and Parenting Time During the COVID-19 Outbreak."
With the announcement by Governor Whitmer of the “Stay Home, Stay Safe” Executive Order, and the recent extension of the order, the time for parents to put aside their differences and work together is now. Children are very likely scared and anxious, and are naturally looking to their parents for reassurance, comfort and guidance. It is critically important for parents to mutually craft solutions for the health and safety of their children while remaining in compliance with government directives- no court or order is better equipped to understand the present needs of your family than you are.
When dealing with disagreements as to how best to handle parenting time during this pandemic, remember that neither parents’ personal needs or desires should outweigh the children’s best interests. Don’t be afraid to think outside the box as to new temporary arrangements – and put them in writing once they are agreed upon to avoid misunderstanding down the road. As parents, taking matters into your hands collectively can allow you the space to creatively come up with solutions that work for your family, in ways that a court could not anticipate, and a court order would not provide. In fact, the current state of affairs requires parents to collaborate and make difficult decisions for the health and safety of their children, including possibly minimizing the need for exchanges to limit children’s exposure. For example, parents can temporarily modify the parenting time schedule to lengthen the time between exchanges or look at the entire year’s schedule and exchange time now for time later. Remember, when making these decisions, keep in mind what is best for the children rather getting bogged down in feelings that you as a parent are “giving up” time.
Parents mindful of practicing social distancing to limit the chances of their children’s exposure to the virus will likely not be penalized for not having exercised parenting time – but parents should not be afraid to provide “make up” parenting time after the quarantine is lifted. Similarly, just because a parent does not exercise physical parenting time does not mean they have to be absent. There are many creative alternatives to help that parent maintain a strong bond with their children. Some examples and ideas include:
Using the technology available to phone and video chat and engage in remote activities with children on a consistent basis can prove to be a workable and necessary alternative for the time being. Parents can be as creative and flexible as necessary to meet the needs of their children.
On the other hand, if parents can’t agree on temporarily restructuring parenting time, the court orders will remain in effect. Beware, neither parent is a judge and a parent cannot unilaterally decide to withhold parenting time from the other. In that event, the offending parent risks legal ramifications for violating court orders. For more information on this topic, see our forthcoming blog, “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.
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).
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 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.
As the state of the pandemic is consistently changing, the attorneys at NSSS&B are closely monitoring how courts are evolving to handle family law matters, in addition to changes in the MSC’s notice and the “Stay Home, Stay Safe” Executive Orders and related FAQs. Keep an eye out on the news and our blog page for updates on new developments. For now, from everyone here at NSSS&B: stay safe, healthy and positive. As a community, we will get through this together.
**The information provided in this blog does not, and is not intended to, constitute legal advice nor create an attorney-client relationship; instead, all information, content, and materials provided are for general informational purposes only.**