Parenting Time During the COVID-19 Pandemic: Part 1
Miriam Saffo, J.D.
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.
What to do about the parenting time schedule:
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, “Parenting Time During the COVID-19 Pandemic: Part 2.”
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.**
 Special thanks to Erin Flynn, J.D., Lori Buiteweg, J.D. and Karen Sendelbach, J.D.