Custody exchanges and parenting time amidst the COVID-19 pandemic
By Sammi Sader
Co-parenting during the best of times can be difficult, but now with stay-at-home orders, social distancing guidelines and conflicting medical advice, it is even more complicated. Below are some of the most common questions that have arisen due to COVID-19. Keep in mind every county has local rules, and each judge may handle things differently. The best advice if you have one of the questions below is to speak with a lawyer.
1. Do I have to continue to follow my parenting plan and exchange my children even if there are stay-at-home orders in place?
The short answer to this question is yes. If you have a parenting plan that has been signed off on by a judge and/or incorporated into a judgment, it is a court order. Court orders should be followed. Custody exchanges have been deemed an “essential activity.” You should continue to exchange your children on the same days, times, and at the same locations as you did before. This is not to say that if you and your co-parent are able to come to a mutual agreement about a temporary schedule or new exchange location that you cannot or should not follow through with that new agreement. If the two of you are on the same page about what is best for your children, and you have decided to work together and make some temporary adjustments, more power to you. However, if there is no agreement, the parenting plan should be followed. This is true regardless of the status of stay-at-home orders or social distancing guidelines. The obvious exception to this rule is if you or your child has been diagnosed with COVID-19 and placed under quarantine.
2. What if my children have serious underlying health conditions?
If your children have serious health conditions that make them more vulnerable to COVID-19, and you believe that their health and safety is at immediate risk, but your co-parent refuses to make any changes to the parenting plan, you should speak with an attorney about filing a Motion for Temporary Restraining Order and Preliminary Injunction along with a Motion for Temporary Custody.
A Motion for Temporary Restraining Order and Preliminary Injunction essentially argues that you should not have to follow your current judgment/parenting plan because if you do it will result in immediate and irreparable injury, loss or damage to the minor children. This is a very high standard to meet and should only be used in the most serious situations. However, if you can meet this standard and prove that your children will be at immediate risk if you continue to follow the parenting plan, this is the proper way for the court to make quick changes.
It is never recommended to withhold parenting time from the other parent without having this Motion on file and a good-faith basis to believe you can meet this standard. Keep in mind that if you withhold parenting time in bad faith or file this motion and are unable to meet the standard, there can be consequences. Consequences may include additional make-up parenting time for the other parent, the appointment of a Guardian Ad Litem, an order of attorney’s fees, payment of counseling costs, etc. This is not a decision that should be taken lightly. If you think this might apply to your situation speak to a local attorney.
3. What do I do if my co-parent is refusing to let me have my parenting time?
If your co-parent is refusing to allow you to see your children, your remedy is to file a Family Access Motion (R.S.Mo. 452.400). You do not need an attorney to file a Family Access Motion. This motion is easily accessible to the public. Family access forms can typically be found on your local court’s website (e.g., https://www.16thcircuit.org/domestic-docketing-forms). To win a Family Access Motion you must show the court that there is a current judgment in place (which includes custody and parenting time orders), and that the other parent has denied you parenting time without good cause. You must include specific facts including dates and times on which you were denied parenting time in violation of the Judgment. If the court agrees that you have been denied parenting time without good cause, the judge can order any or all of the following:
You receive make-up parenting time equal to the amount of parenting time you were denied;
Your co-parent participates in counseling to learn about the importance of providing your child with continuing and meaningful contact with both parents;
Your co-parent pays a fine of up to $500;
Your co-parent posts a bond or security to ensure future compliance with the court’s order;
Your co-parent pays the cost of counseling to re-establish the parent-child relationship between the aggrieved party and the child; and
Your co-parent pays the reasonable expenses, including attorney’s fees and costs incurred as a result of the denial of parenting time.
For information on how to file a Family Access Motion, specifically in Jackson County, please read the Family Access Booklet at https://www.16thcircuit.org/Data/Sites/1/media/Civil_Records/Domestic_Forms/family-access-booklet-2016.pdf.
4. Are there alternatives to litigation?
Litigation is costly, time-consuming, and emotionally draining. It is also stressful for your children. Before filing an action with the court, consider the following alternatives:
Co-parenting Therapy – With the help of a therapist, you and your co-parent will learn how to work through conflict and differences in parenting styles to raise your children together as a team. This is an on-going process that can be engaged in on a regular basis or when specific issues arise. Co-parenting therapy is the place to address issues and concerns that the court can’t always help with, such as what should social distancing for our children look like, who are we comfortable with allowing into our children’s quarantine circle, or how are we going to work together while school is out of session. Co-parenting therapy is highly effective where the issue is not a legal issue per se, but a difference in parenting styles. Keep in mind, not all issues are solved in one session. A good co-parenting relationship takes constant work, but if you both fully commit to this process it can save you untold amounts of money, time and stress.
Mediation – When there are disputes about what a specific provision in a parenting plan means or how it should interpreted, or even when one party wants to make a change to the parenting plan, mediation is a good place to start. Be sure to check your parenting plan as many times mediation provisions will be included. A mediation provision typically requires that in the case of a dispute the parties first attend mediation before resorting to litigation. A mediator is usually a neutral third-party attorney (or even a judge or therapist) familiar with the law and the court system, and who is trained and certified to help parties come up with creative solutions. Everything that occurs during mediation is confidential, meaning it cannot be used against either party later in court. If an agreement is reached in mediation it will need to be formalized, which can be done with the help of a local attorney.
There is no one-size-fits-all answer to these complicated questions. Every family and every case is unique and requires individualized advice. This is the first time that all of us, lawyers and judges included, have dealt with issues arising from a global pandemic. At the end of the day, patience, kindness and understanding toward your co-parent, your children, and yourself more so than anything else will help in navigating these stressful times.
Sammi Sader is an associate attorney at Fisher Law LLC, focusing on family law litigation, adoption and appellate work. Sader attended undergrad at the University of Missouri, Kansas City, and graduated cum laude from the University of Miami School of Law.