The impact that the COVID-19 (Novel Coronavirus) pandemic has had on our communities has been non-discriminatory and relentless. Like many businesses and government offices, the courts have had to adapt to a new way of doing things to ensure the safety of the public and court staff. With new safety protocols in place, courts are working with limited staff and essentially closed to the public, except for some matters . In turn this has caused many people to experience filing and scheduling delays. While parents and families continue on with their lives trying to maintain some state of normalcy and navigate these uncharted waters, it has become increasingly apparent that co-parenting during a global pandemic is no easy task. This article is designed to answer frequent questions that parents have relating to co-parenting during the COVID-19 pandemic.
Do I have to follow the courts parenting orders during the COVID-19 pandemic?
This may be the single most asked question since the beginning of the pandemic. The simple answer is yes. A court’s order or judgment remains in full force and effect until it is changed by the court itself. Parents may also mutually agree to modify or alter their parenting plan from time to time as appropriate under the circumstances, but this should always be done in writing to protect oneself from false accusations. Any longstanding changes, if agreed upon, should be formalized by Court Order (i.e., by filing a Joint Petition for Modification).
On March 24, 2020, Chief Justice John D. Casey stated in this open letter to the public regarding co-parting during COVID-19, “Parenting orders are not stayed during this period of time.” This means that you must continue to follow all parenting orders that are in place. The Chief Justice went on to say that it is important that children spend time with both of their parents and that each parent have the opportunity to engage in family activities where provided for by court order. He further expressed that in cases where a parent must self-quarantine or is otherwise restricted from having contact with others, both parents should cooperate to allow for parenting time by video conference or telephone. Simply put, now, more than ever, it’s important for parents and families to work together to promote harmonies co-parenting relationships.
What should I do if my parenting time is being withheld during the COVID-19 pandemic?
As noted above, the Chief Justice was very clear with his guidelines on co-parenting during the COVID-19 pandemic. Therefore, if you find yourself in a position where your parenting time is being restricted or you are withholding parenting time, you or your co-parent may have a contempt claim. Absent a modification, parenting orders are expected to be followed.
That said, during these unprecedented times, we are faced with new challenges and concerns on a daily basis. If there has been a substantial and material change in circumstances since the time of the last order addressing custody and parenting time, seeking a modification of that order may be appropriate. As is relates to new concerns regarding the COVID-19 pandemic, the following circumstances may warrant a modification:
- One parent is not following recommended guidelines on social distancing, wearing a mask or handwashing
- A parent (or someone close to the parent) has tested positive for COVID-19
- You want to prohibit the other parent from traveling with a child to a location that has been declared a hot spot.
While not an exhaustive list, the above should provide a good idea of scenarios where a modification may be in a child’s best interest.
What if the other parent lives in a different state?
Living in New England presents the very possible scenario where parents live in different states. Having dealt with many clients who are co-parenting with one parent residing outside the Commonwealth of Massachusetts, we are very familiar with the challenges that come with it. Add a global pandemic and ever-changing restrictions on interstate travel and you are all of a sudden faced with a new set of challenges. If you are traveling between states for the purpose of managing shared custody or parenting time of a child, you will want to stay up to date on the state’s travel orders.
Currently, the travel order provides that children who travel in and out of Massachusetts because of transfers of custody or visitation between parents or guardians are exempt from the requirements of the order. Obviously, this may change at any time in the future so please make sure to follow up with state guidelines as appropriate. Parents and guardians may rely on the transitory travel exemption, provided they comply with its limitations. During the duration of the COVID-19 pandemic, it is a good idea to keep a copy of your custody orders in your car. In the event you are pulled over while in transit going to and from the exchange of the child(ren) this will provide proof that your interstate travel is authorized. Depending on which state you are traveling to, you will want to stay up to date with the travel orders of that state– the above applies only to the Massachusetts travel orders.
What if one parent tests positive for Covid-19?
As cases of COVID-19 are on the rise, the fear of contracting the virus is a lingering concern. If you have been exposed or tested positive for COVID-19, you should contact your parent counterpart immediately and begin your required two-week quarantine. During the quarantine period, parents should work together to ensure the child(ren) are sufficiently cared for. Carving out a time each day for the child(ren) to speak to or video chat with the quarantining parent should be prioritized. If you suspect the parent who has been exposed or tested positive for COVID-19 has not been abiding by the CDC guidelines and/or willfully exposing themselves to the virus, this may be grounds to seek a modification. However, it should be mentioned that a global pandemic is not the time to file frivolous or spiteful claims, empathy and patients during these unprecedented times is strongly encouraged.
What are the Court Protocols on Emergency/Non-Emergency Hearings?
While the pandemic progresses, the Massachusetts Probate & Family Court division continues to update their protocols for court operation. Per the current Standing Order, all courthouses are closed to the general public and all business will be conducted virtually, except for matters which are deemed emergency and/or cannot be conducted virtually. The following are the relevant situations that have been listed in the Standing Order as “Emergency Situations”:
- Restraining Orders/Orders to Vacate
- Petition seeking appointment of a temporary guardian or conservator
- Motions for temporary orders where exceptional/exigent circumstances have been demonstrated
- Contempt actions where exceptional/exigent circumstances have been demonstrated.
It is important to note that there are no clear guidelines on what is considered to be exceptional/exigent circumstances. The reality is, that all emergency situations are being screened by the courts and are considered on a case-by-case basis. Our office has been involved in both filing and defending emergency motions since COVID-19 began, including (a) traveling to a from a hot spot state was not considered an emergency; (2) protection from alleged physical abuse was considered an emergency; (3) ensuring access to health insurance was considered an emergency. Obviously, every case is different and it is important to seek legal advice relating to your specific case, and do not rely on things you read on the internet for legal advice.
All non-emergency hearings have been conducted virtually, either by video or telephone. If you have a virtually hearing scheduled, it is important to familiarize yourself with ZOOM.
If you are experiencing issues co-parenting during the COVID-19 pandemic, there may be some comfort in knowing that you are not alone. There are a lot of resources out there that touch on this topic and provide helpful tips on how to co-parent during these times. To find out more about new court procedures/schedules or to discuss how the COVID-19 pandemic is affecting your co-parenting situation, do not hesitate to reach out to our office.
