If you have a child with someone and are either divorced or never married, the chances are good that you have a parenting plan in place. Most parenting plans are court orders that must be followed. If a parent does not follow the order, they risk being found in contempt of court. But what about fears surrounding the Coronavirus? According to public health experts, the greatest defense we have against the spread of this potentially deadly virus has been labeled “social distancing,” which means keeping a distance of six feet or more between people as much as possible and limiting exposure to new people when it is not necessary.
But how does this apply to shared parenting? A child from a single-family home where mom and dad are married and all the kids reside together results in each child only being exposed to the members of that one household. But in a divorce, the child literally has two households to contend with. They will be exposed to each person in mom’s house and each person in dad’s house. Depending on the number of people in each home and their likelihood of becoming infected, this could significantly increase a child’s chance of getting sick or spreading the illness to more people if they are carrying the virus. So what should a parent do in this situation?
Agreement Is Best
As is always true in any domestic situation, parents who can work together to reach a mutually beneficial agreement is best. If both mom and dad truly have the child’s best interests at heart, the answer will hopefully be clear. Depending on the circumstances, this could mean allowing the child to weather out the storm in one or both houses. But what about when the parents cannot or will not agree?
When Agreement Can Not Be Reached
If you and your co-parent cannot reach an agreement, you may find yourself having to make a decision that may conceivably cost you down the road. Let’s look at two examples.
Example One
Let’s say that Sally and Sam are divorced and now have a parenting plan in place where they each have their daughter, Cindy, 50% of the time. In the past few years, Sam has been living with Kelly, who is an international flight attendant. Kelly just got back from a long layover in Italy when the pandemic hit America and schools closed. Now Kelly is home, hasn’t been tested, and won’t know if she contracted the virus while in Italy for up to two weeks.
But according to the parenting plan, it is Sam’s day to have Cindy. Sally doesn’t want Cindy to go to Sam’s house until they are certain that Kelly isn’t infected. Cindy has a history of asthma and Sally is afraid that, if Cindy gets the virus, it may have serious complications. Sam gets angry and demands that Sally deliver Cindy to his home as per the parenting order. Sally refuses. Sam then files a motion for contempt of court against Sally for keeping his daughter from him.
Uncharted Territory
Since this pandemic is something that none of us has experienced before, we are in uncharted territory. What is normal is no longer the norm, and Sally really cannot know what to expect from the judge when the contempt order is addressed. In fact, the chances are that the courts in Sally’s jurisdiction are closed except for emergency matters. And unless the judge considers this an emergent situation, the contempt motion may not even be heard for weeks or months. But what can Sally expect to ultimately happen?
The answer is that no one really knows for sure.
Under normal circumstances, Sally’s refusal to abide by the parenting plan would likely result in her being held in contempt of court. But the circumstances surrounding COVID-19 are anything but normal.
In this situation, it is likely that the judge would understand Sally’s fear of her child getting the virus, particularly if Sally has no history of unreasonably withholding Cindy from her dad in the past. And even though Sally technically contravened the order, in this situation, Sam is the one who may come off looking bad. Given what we currently know about COVID-19, Sam disregarding his daughter’s health and demanding his time with her puts his daughter at risk of a deadly disease. It is unlikely that a judge would see Sam’s behavior as reasonable. In fact, they may see it as incredibly selfish.
That is one possible outcome.
Example Two
Tom and Tammy are co-parenting their son Kyle after their divorce, with a 50/50 parenting plan in place. They both live alone, work in an office environment, and don’t travel. When the COVID-19 pandemic closed Kyle’s school, he was at Tammy’s house. But two days later, when Tom wanted to pick up Kyle for his parenting days, Tammy refused to allow Kyle to go with Tom. She said that she didn’t want Kyle exposed to any more germs than he needed to be exposed to, so she would not allow Kyle time with his dad.
In this situation, we just don’t know how a judge will decide this when the dust has settled. It looks like Tammy has no real justification to keep Kyle from his father. Judges are allowed to use common sense, and in this situation, he or she will likely assess the infection potential presented.
With Sally and Sam, the infection potential was high. Kelly had just returned from Italy, a place that has been hard hit by the virus. There are at least two weeks where Kelly could be infected and not even know it. Cindy going to Sam’s was a pretty clear danger. However, with Tammy and Tom, there appears to be no greater risk at Tom’s house than at Tammy’s.
Yes, an argument could be made that two households equal double the chance of infection, but without further proof of danger, the judge may not see that as enough reason to depart from the parenting plan. This case would have a far greater chance of resulting in contempt found against Tammy. However, what would the punishment be? Again, there are no crystal balls, but the chances are pretty good that a judge would understand a parent’s fear during this unknown crisis and simply order makeup parenting time with Tom once the crisis is over.
Danger Assessment
There are a million variations to the simple examples above, and the answer for you may not be clear. You don’t want to be held in contempt, but you may fear for you or your child’s health.
The bottom line is really this: Are your health and safety concerns for your child worth the possibility of being found in contempt of court? Because this possibility exists anytime that you refuse to follow the parenting plan, you must acknowledge that it may happen. If you have been unreasonable and the court has found you in contempt before, then you may not fare as well as someone who has been diligent about encouraging your child’s relationship with their other parent. However, if you have been diligent in adhering to court orders in the past and have a solid basis upon which to believe that your child’s exposure to the other household could endanger their health, then the judge may ultimately rule in your favor.
An Experienced Family Law Attorney Can Help
The team at Batson Nolan PLC is ready and able to help you in difficult decisions, even in the midst of this global health crisis. We are technologically ready and able to service our clients remotely, and continue to advise you on important legal matters. Call us today, or contact us online to set up a free consultation from our Clarksville or Springfield office.