Mother fitting a medical mask on her young child.

April 3, 2020 Update – Parenting Exchanges Must Continue

On April 3, Chief Judge Bain of the 4th Judicial District issued Chief Judge Order 20-16 Regarding Court Operations Under The Novel Coronavirus (COVID-19) Advisory, Para. III.C makes clear, in bold print, that Covid-19 does not affect parenting exchanges:

“All Parties are advised that all existing court orders, including parenting time and parenting exchange orders, are not suspended by the Stay-at-Home Order issued by Governor Jared Polis, and shall continue to be followed unless otherwise modified by the court or agreement of the parties.”

Covid-19 Impacts Everyone, Including Divorced Parents

As I originally wrote this back in March, the U.S. had surpassed Italy to have the most COVID-19 cases in the world (we just passed 100,000 cases today), with over 1500 deaths so far. And the effects are being felt everywhere – workplaces shuttered, stores closed, hospitals filled, etc.

And from a parenting perspective, divorced parents have those same concerns, plus additional questions about whether the court’s custody orders are impacted by the Covid-19 stay-at-home order, and what to do when the other parent is needlessly exposing the children to greater risks.

The American Academy of Matrimonial Lawyers & the Association of Family and Conciliation Courts has issued guidance to parents, Seven Guidelines For Parents Who Are Divorced/Separated And Sharing Custody Of Children During The Covid-19 Pandemic. It’s a descriptive, if not exactly catchy title, but it comes from two high-caliber organizations who know their stuff. Their guidance can be summarized as:

  • Follow CDC recommendations
  • Keep children calm by being careful what you say, and not having cable news on all day
  • Obey court orders (more on this below)
  • Be creative if the children cannot see the other parent or do their favorite activities
  • Be honest & open with the other parent about risks, exposure, etc
  • Provide make-up time if a parent misses parenting
  • Understand if the other parent cannot afford to provide full support

These are all great, common-sense guidelines, and if all divorced or separated parents lived by them, society would need a lot fewer family law attorneys. Sadly, in many cases parents have poor relationships with one-another, and don’t trust each other, so cannot co-parent based upon voluntary recommendations alone.

This is an issue I first wrote about two weeks ago with a blog post Coronavirus & Colorado Child Custody, but so much has happened, and changed, since then that it’s time to revisit the new legal climate – especially with the new stay-at-home order. And people are confused – per this news report, divorced parents are even calling law enforcement to see what their rights and obligations are for parenting time exchanges during Covid-19.

Colorado’s Stay-At-Home Order

On March 25, 2020, Colorado Governor Jared Polis issued an initial order with stay-at-home requirements, but as recognition that these are unprecedented times where they don’t think of everything at once, the order has been updated multiple times already. The latest version is Updated Public Health Order 20-24 Implementing Stay At Home Requirements, dated March 26, 2020.

The basic requirement of the order is:

“All individuals currently living within the State of Colorado are ordered to Stay at Home whenever possible. Individuals living in shared or outdoor spaces must at all times, to the greatest extent possible, comply with Social Distancing Requirements, and may leave their Residences only to perform or utilize Necessary Activities.”

The “whenever possible” in the order is followed by several pages of authorized activities and work, including:

  • “Necessary activities” such as leaving home to obtain medical treatment, household supplies, items necessary to work from home, engaging in outdoor activities (observing social distancing), or performing work for a critical business or governmental function.
  • “Necessary travel”, which includes travel for a necessary activity, or for our purposes, “travel required by law enforcement or court order” (para. III.B).
  • “Critical Businesses” include health care operations, critical infrastructure or  manufacturing, critical retail (grocery stores, gas stations, and, oddly, liquor stores and marijuana dispensaries), various critical services (e.g. trash, utilities, day care, laundromats), media, and others.
  • Some legal work is also excepted. Para. III.D. authorizes: “Judicial branch operations, including attorneys if necessary for ongoing trials and required court appearances, unless appearances can be done remotely.”

Child Custody Orders vs Covid-19 Stay-At-Home Order

Given that it’s dangerous to leave the home due to Covid-19, hence the stay-at-home order, does that mean parenting exchanges are also suspended? In a word, no!

Note that among the exceptions to Gov. Polis’s order summarized above includes “travel required by law enforcement or court order” – that means parents still have to exchange children for custody purposes, observing safe social distancing, of course. Moreover, at a news conference on March 27, 2020, Gov. Polis provided more clarity and real-world examples of his order in effect, including: “It’s also important to clarify that parents transporting children to comply with parenting plans is, of course, allowed. Those are not exempt, if you share custody, those need to continue.”

This is consistent with the AAML guidance #3, which provides:

“BE COMPLIANT with court orders and custody agreements.

As much as possible, try to avoid reinventing the wheel despite the unusual circumstances. The custody agreement or court order exists to prevent endless haggling over the details of timesharing. In some jurisdictions there are even standing orders mandating that, if schools are closed, custody agreements should remain in force as though school were still in session.”

Note that the AAML guidance does not have the force of law – it’s guidance, and in the absence of a court order to the contrary, it is guidance from some very smart, experienced domestic relations lawyer that is worth listening to.

As indicated above, on April 3, 2020, Chief Judge Bain of the 4th Judicial District issued an order clarifying that parenting time and exchanges must continue as normal during the coronavirus closures. This welcome guidance follows informal guidance being put out by judges behind-the-scenes, and is consistent with orders from courts in other jurisdictions, such as the Texas Supreme Court, and Cook County, Illinois.

Emergency Child Custody Orders or Parenting Time Restrictions

Certainly a parent has a duty to protect his/her children, but that duty does NOT allow the parent to act unilaterally as judge, jury and executioner and decide that the other house is not a safe environment for the children thanks to Covid-19.

Covid-19 & Custody

Though the courts are generally closed, they are still open for very specific emergencies. In family law, this includes restrictions on parenting time, abduction prevention measures, and protective orders. Upon filing a motion to restrict parenting, the other parent’s parenting time is automatically restricted for up to two weeks, unless the court issues a formal ruling in the interim. C.R.S. 14-10-129(4).

So if a member of the other parent’s household tests positive for Covid-19, first try to talk the other parent into agreeing the children should not spend time there (hopefully not an issue??!!) But if the other parent insists that the children should be exchanged and spend time in his/her house regardless, then don’t act unilaterally. Talk to your attorney re: a motion to restrict parenting.

And finding a lawyer shouldn’t be difficult. Para. III.D. of Gov. Polis’s order exempts from the stay-at-home requirements “Judicial branch operations, including attorneys if necessary for ongoing trials and required court appearances, unless appearances can be done remotely.”

NOTE – Graham.Law is open for business. To protect you and us, we are working from home, except as absolutely needed for emergency court appearances which cannot be done telephonically. Call us at (719) 630-1123, and one of our staff will answer as normal, transfer calls to our attorneys and paralegals, we have full access to our client files in the secure cloud, and, of course, email. The only thing missing is what all of us are now missing – the in-person contact. We’ll get back to that when the Covid-19 pandemic is over!

Risky Behavior In Other Parent’s Household

Finally, what happens if the other parent is engaging in risky behavior that needlessly increases the children’s exposure to coronavirus? This is a difficult question, and there is no clear case law on point. Remember, we are in uncharted territory with coronavirus – the first nationwide pandemic in over 100 years.

Colorado has a tradition of parents having autonomy during their own parenting time to act without interference from the other parent. And under our law, a fit parent is presumed to be acting in the best interests of the children during his/her parenting time. DePalma.1In re: Marriage of DePalma, 176 P.3d 829 (Colo.App. 2006). But that’s not to say that a parent has unfettered discretion to act recklessly – at some stage, courts step in to protect the children. But there is no clear rule as to when that would be.

There are three broad categories of conduct one parent may be concerned by:

  1. Activities of the other parent when the children are not present. If a parent hosts a party without the kids, who are we to complain? The obvious retort is that a parent who does that increases his/her own chances of exposure to COVID-19, which does affect the children. But this “harm” is indirect enough that I doubt most judges would tell a parent what he/she can do in their own time when the children are not present.
  2. Activities with the children which violate health recommendations from the Centers for Disease Control, or, for example, the President’s Coronavirus Guidelines for America, such as attending gatherings of more than 10 people. Or even sending the children to daycare when the other parent is available instead – perfectly legal, but perhaps ill-advised? This is a gray area – legal conduct which would probably not cause most judges to issue emergency orders, but if such conduct is persistent, maybe the cumulative risks on the children would cause the judge to take notice? It’s hard to say (again, we are in unprecedented times).
  3. Activities with the children that break the law. A parent who violates the Colorado “stay-at-home” order with the children is acting both illegally, and putting the children at risk. An analogy from normal times may be a parent who drives drunk with the children. My suspicion is that if such conduct continues despite warning the other parent to stop, it would be sufficient grounds to file a motion to restrict parenting time. At a minimum, the court would likely order the parent to obey the law, and maybe even restrict that parent’s time.

The takeaway? It never hurts to at least talk to a lawyer to see if there is something you can do, but as modern society has never faced a challenge like Covid-19, we can give you educated answers, but not definitive ones.

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