My Co-parent Is Refusing Custodial Exchanges, Due To COVID-19. What Do I Do?

Question:

My co-parent is refusing custodial exchanges, due to COVID-19. What do I do?

Answer:

Unfortunately, I do not practice law in your state, so I cannot inform you as to the specific laws of your state. However, I can provide you with some general tips that may help guide you for this sort of issue.

The COVID-19 pandemic has created many novel issues that both the courts and potential litigants are attempting to wade through together. It is safe to say that virtually no party reasonably included language in their respective custody order as to how the parenting plan would function in the event of a pandemic.

Regretfully, this health crisis has caused some parents to attempt to take advantage of the situation and exploit a custodial agreement to their advantage. However, some parents truly may be acting to protect their children and keep them safe in these uncertain times.

Regardless of the intent of the acting parent, it is important that both parents first try to communicate with each other about the best way to handle this pandemic and any other unexpected event before deviating greatly from a custodial order.

It is understandable that both parties likely are to be stressed out or anxious due to any sort of pandemic event, but you still should try to cordially and amicably communicate with the other parent. However, if a party already has deviated from the parenting plan or has announced that they intend to, it is important that you make clear that you do not agree to this change. Their side may try to argue in any subsequent court action that you acquiesced to this deviation and that therefore, they should escape the consequences of their actions.

If the other parent does follow through with their intent to withhold your parenting time, make sure to stay in contact with your children. Do not disparage the other parent in your contact with the children, but it is important that your children understand that you did not choose to give up your parenting time and that this disagreement between the parties is not the fault of the children.

Many times when a parent misses their planned period of parenting time, this can result in the children feeling hurt, lost, or confused. Try to stay involved in your children’s lives as much as possible, despite the lack of parenting time. Make clear to the other parent that you still intend to exercise your visitation time and that if necessary, you may have to involve local law enforcement.

It also is recommended that you maintain records of your contact with both your children and the other parent during this time, so that you are preserving evidence in case of a future dispute.

Generally speaking, if a party deviates from a custody order without an agreement from the other party, it can be considered contempt of court for the failure to follow the court’s order.

But as we recently have seen with this COVID-19 crisis, each jurisdiction handles the crisis differently, and there may be exceptions to what would normally be considered contempt. However, as a general rule of thumb, one should assume the active custody order still is in effect barring an agreement of the parties or a superseding order. Failure to abide by that custody order generally is frowned upon by judges and can be punished by fines, jail time, or other penalties.

A parent should contact the clerk or judicial staff in the county or jurisdiction that the custody order was filed in. If a parent is unsure how to do that, an experienced family law attorney easily can help you with that task. It is possible that the sitting judge or magistrate may have issued a temporary standing order that addresses how custody orders are to be handled during times of crises or emergencies.

For example, the 20th Judicial District of Tennessee issued a temporary standing order that provided guidance as to how parenting plans were to be followed. The Standing Order provided that parenting plans were to remain in effect, but set forth a few exceptions for visitation being suspended. Those exceptions included if a child, parent, or family member were diagnosed with COVID-19 (with proof of diagnosis from a physician to the other parent), visitation was suspended for 14 days.

Additionally, the parenting plans would be suspended immediately if lockdown or shelter-in-place orders were issued by local, state, or federal governments, and that the primary residential parent would take custody of the children within four hours of said order being issued and maintain custody of the children until the orders were lifted.

However, the parties were free to come to an alternative parenting schedule provided that both parties put the agreement in writing and signed said agreement. This is an example of how a standing judicial order can provide specific guidance on how to navigate the COVID-19 health crisis. Unfortunately, not all courts issued such orders or the orders that were issued were not clear.

Regardless of the existence of a standing order, your next step should be to contact an experienced family law attorney, who will be able to assist you in determining the most appropriate next steps based on the facts of your case. That attorney can help advise you on how to understand any applicable court orders that have been issued in this time of crisis and how to best proceed in light of the circumstances, whether that be pursuing a contempt action against the other parent or helping the parents find an alternative solution during this pandemic.

If a parent continues to try to exploit this pandemic to their gain, it is important to get the courts involved as soon as possible so that these issues can be rectified and addressed. Many courts still will allow for an emergency filing, so that issue such as this can be heard quickly and promptly. An experienced family law attorney can best advise you on how to handle this situation and hopefully reunite you with your children.

To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, including Tennessee divorce lawyer Ryan Claxton, contact Cordell & Cordell.