Massachusetts emergency declarations and court ordered parenting time (visitation).

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.

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.

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:

1. A clear court order
2. A clear violation of the order
3. 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.