In an effort to fight the
spread of Covid-19 (coronavirus) Governor Baker has issued emergency
declarations and Health
care advisories to enforce social distancing. He has declared a
public health emergency. He has closed all non-essential businesses.
He is trying to force Massachusetts residents to stay six feet away
from other people. The Courts have issued their own set of rules for
functioning during this emergency in which they are closed for all
purposes except emergencies. What happens to Court ordered parenting
time during this emergency?
Chief Justice of the Probate Courts has issued an open letter addressing parenting time during the Covid-19 emergency. This letter states that parenting orders must be followed unless the parent or child are quarantining. The letter has several links that are helpful and discuss parenting in more specifics.
If there is a court order that specifically calls for parenting time during the Covid-19 emergency then those orders must be followed. Very few court orders will meet these criteria.
If there is a court order that specifically calls for parenting time during the Covid-19 emergency then those orders must be followed. Very few court orders will meet these criteria.
In all other cases, the
parents should cooperate to allow parenting time in compliance with both the court orders and the emergency orders to the extent possible. The ideal visit would keep the parent and child six feet away from each other. A visiting parent can
meet the child at the child's home and take the child for a walk,
biking, or hiking. Perhaps the parent and child can have picnic.
During these activities they can stay six feet apart.
However, if a visiting parent insists, then that parent can transport a child in a car or take the child to the visiting parent's home. The parent should not be able to take the child to a restaurant or a movie theater as these should be closed.
If visitation is being curtailed by agreement of the parents then the parents can increase telephone or video communications between absent parent and child.
However, if a visiting parent insists, then that parent can transport a child in a car or take the child to the visiting parent's home. The parent should not be able to take the child to a restaurant or a movie theater as these should be closed.
If visitation is being curtailed by agreement of the parents then the parents can increase telephone or video communications between absent parent and child.
Hopefully parents will
agree on methods to allow parenting time and still keep social
distance. In most cases, if the parents can't agree they can return
to court to work out such matters. At present, the courts are
closed for matters like this. A visiting parent who thinks that the
other parent is violating court orders by denying parenting time
won't have any remedies until the emergency is over and the courts
reopen. At that time, the visiting parent can file a contempt
action.
A contempt for violation
of a court order has three elements:
- A clear court order
- A clear violation of the order
- The ability of the other parent to comply with the order.
In light of the Chief Judge's letter it is likely that Judges will make findings of contempt if a child is not permitted to accompany a visiting parent without something more than the declaration of emergency. If someone shows symptoms of covid-19 they should be isolated. A finding of contempt
should not issue if a parent appeared to violate a court order to
protect the safety of the child or the parent. Protecting a child from exposure to someone with active symptoms of covid-19 is likely to be found to be necessary to protect the child and other family members.
Hopefully parents can
cooperate during this emergency. However, if they cannot, consulting
an experienced family law attorney may help the parties resolve the
issues. If a parent thinks that a true emergency exists and they
should file an action in court before the emergency is over, then
they should consult an attorney on bringing an emergency action.
