Managing a co-parenting relationship amid the COVID-19 pandemic is a tall order. Stress, anxiety and financial hardship will inevitably lead to disagreements. Understanding the law as it relates to the pandemic is imperative in order to help parents navigate problems during this crisis. When issues arise, parents may pursue legal remedies, but they must also consider any associated risks in pursuing legal action.
On Tuesday, Gov. Mills issued a plan to reopen Maine and extended the statewide stay-at-home order through May 31. For Maine parents, the stay-at-home order is significant to understand because it informs post-divorce custody disputes.
Parents may not believe that transitioning children between homes is safe during the pandemic. However, parents must abide by their current parenting plan despite their concerns. The current stay-at-home order requires residents to stay home unless they are engaging in “essential” activities, and following a court order has been deemed essential. Specifically, the order states that “travel required by a law enforcement officer or court order” is essential (emphasis added). Therefore, the general rule is to follow the current parenting order in effect.
However, there may be exceptions to this general rule if transitioning a child poses significant safety risks. For instance, if an ex-spouse is a physician treating COVID-19 patients daily, the other parent may be justified in withholding contact. In some cases, parents may live multiple states apart post-divorce. Traveling hundreds of miles cross country to exercise parenting time may put a child at risk of exposure unnecessarily. Also, traveling interstate would be a violation of numerous stay-at-home orders.
Although family law court is closed, a parent can request an expedited hearing and seek court intervention. Pursuant to a Pandemic Management Order issued by the Maine Supreme Judicial Court, court is closed until May 15 (a revised order extending the court’s closure through May 31 will likely be issued), but exceptions are allowed for “urgent and compelling” reasons. The court will determine on a case-by-case basis which matters can be heard and will schedule those hearings by telephone and videoconferencing.
Parents on both sides of this dispute can file motions and ask to be heard as soon as possible for urgent and compelling reasons. Parents seeking to suspend contact because of COVID-19 can file a motion to modify and allege that COVID-19 constitutes a substantial change in circumstances that supports a temporary suspension of contact with the other parent. Similarly, an aggrieved parent who has been denied contact can file a motion as well. That parent can file either a motion to enforce or motion for contempt and allege that the other parent failed to abide by the current parenting order.
Risks are associated with both scenarios. Legal fees will be incurred and there are no guarantees that a matter will be deemed urgent and compelling. Motions may be denied, and the parent seeking help will be out of luck and money. A parent should think twice before withholding contact without sufficient cause. If the aggrieved parent prevails on a motion for contempt or motion to enforce, the court may order the other parent to pay all legal fees and costs. Furthermore, if contempt is found, the parent is at further risk of court fines, and being ordered to provide makeup parenting time to the aggrieved parent.
Although legal options are available, co-parents should communicate with one another outside of court in order to reach an agreement that addresses safety concerns associated with a current contact schedule. A fair agreement might include a temporary suspension of contact time in exchange for makeup time after the pandemic has subsided. During any period of no contact, liberal telephone and video contact with the child should be allowed.
Send questions/comments to the editors.
