As a law firm that focuses exclusively on family law, the vast majority of our clients have minor children and are subject to a parenting order. During this COVID-19 pandemic and as we all adjust to the Ohio Stay at Home Order to help to prevent the spread of this virus, the number one question our office fields every day is, “How does the Stay at Home Order affect my parenting time?” The short answer is that if you are subject to a court order for parenting time, you must follow it.
COVID-19 and Child Custody Arrangements
Whether a sole custody situation or a case involving shared parenting, any court order dealing with children will address specific parenting time, electronic communication between the parents and the child(ren), and transportation to and from parenting time. They will detail the parenting time and contact between parents and their child(ren), and how that should look. Absent a modification of this order during the COVID-19 outbreak, all provisions remain in effect.
The March 24, 2020 Director’s Stay at Home Order and April 2, 2020 Amended Director’s Stay at Home Order both contain an “Essential Travel” provision. Specifically, Section 14(e) permits “[t]ravel required by law enforcement or court order, including to transport children pursuant to a custody agreement.” This explicit provision requires that parenting schedules and transportation to and from parenting time should continue unmodified.
Denial of Parenting Time Due to Ohio Stay at Home Order
Courts are leery of parents who are using the Stay at Home Order as justification for denying parenting time and have been clear that they will not tolerate such behavior. One Ohio judge stated that denial of parenting time due solely to the Stay at Home Order would certainly be contempt of court and could possibly be considered as grounds for a change of custody or modification of parenting time because the parent in violation is not acting in the child(ren)’s best interest.
Greene County Domestic Relations Court has specifically stated that parenting time should continue and that parents “should adhere to all holiday and spring break schedules as designated by their schools at the beginning of the year regardless of recent changes.” In Franklin County, one judge spoke out against a parent refusing to return their child to the other parent because that parent is a nurse. Judge Dana Preisse stated, “You are to follow whatever shared parenting or custody plan that you have until there is another court order and to punish these folks (by denying parenting time) because they are saving lives and are out there on the frontline, you know, it’s just not right.”
Domestic Relations Courts have overwhelmingly taken the position that denying parenting time in violation of a court order will not be tolerated. If you violate a court order, you may be subject to contempt of court that can result in an order providing makeup parenting time to the parent who was denied parenting time, a fine of up to $1,000, imprisonment of up to ninety (90) days, orders to pay the attorney fees and court costs of the other parent, and, in extreme cases, a change of custody or parenting time. Ohio R.C. 2705.05
Modifying Court Custody Orders During COVID-19
There are, of course, times when it may be appropriate to seek a modified court order as a result of the Stay at Home Order. One such example may be if a child is immunocompromised and the other parent has been exposed to or diagnosed with COVID-19. However, before heading to court for an emergency order, you should first consult with your attorney and, if it is determined appropriate to seek court intervention, expect the court to require you to present independent evidence of your child’s impaired immune system and the risk of contracting COVID-19 from the other parent, such as the opinion of a physician and proof of the exposure or diagnosis of the other parent. Court’s will not issue emergency orders suspending parenting time based only on the possibility of exposure without supporting evidence. After all, based on what the Department of Health is reporting, everyone has some degree of risk so completely insulating your child from that risk is virtually impossible.
It is also important to keep in mind that there is nothing that prevents a modification of parenting time by agreement of the parties. Court orders are in place to resolve disputes between parents and, inevitably, there is a time when it may be appropriate to deviate from those orders. However, such deviation must be done by agreement of both parties; when one party deviates from the court order and the other parent is not in agreement, the change in schedule is no longer a deviation, rather, it is not a violation of the court order and subject to a finding of contempt.
One change that might make sense is a modification of the parenting schedule to reduce the number of exchanges of the child(ren) while the Stay at Home Order is in place. For example, if you normally exchange the children every two days and alternate weekends, a week-to-week schedule could reduce exchanges from three times per week to only once, and also reduce the number of times you and your child(ren) have to leave the house; this also creates more stability for children who are currently participating in distance learning amid the shutdown of the schools. Another possible modification could be to move the exchange location from a public place to a location that is more isolated, such as a large park where maintaining distance from the general public is more easily accomplished.
An Experienced Attorney Can Help
Courts expect parents to act in the best interest of the child(ren). If you have ever been to court for child custody related issues, you have heard the term “best interest of the child” frequently. Two of the fundamental principles behind the best interest of the child are maintaining parenting time between the child(ren) and both parents and keeping the child(ren) healthy. 2020 has proven to be a challenge for everyone but it is not at all impossible to balance those two principles until the Stay at Home Order is lifted and things return to normal. Successful parenting involves putting your child’s best interest above your own self-interest or whatever feelings you may have for the other parent.
This article is based on general information and is not intended as legal advice. Each custody or visitation arrangement is unique and any specific questions about your case should be directed to your attorney.