How Do We Handle Custody And Parenting Time Exchanges Under The COVID-19 Stay-At-Home Order?

With Governor Holcomb’s “Directive to Stay at Home” order taking effect at 11:59 p.m. on Tuesday, March 24, 2020 to slow the COVID-19 epidemic, parents with children born out of wedlock and from divorce face uncharted waters. This is because some states with stay-at-home or shelter-in-place orders have prevented custody and parenting time exchanges. There is simply mass confusion. This blog covers a reasonable application of how parents in Indiana should conduct themselves in exchanging the children during the period (until April 6, 2020) of the stay-at-home Directive.

The most important aspect of this Directive is that custody and parenting time should remain the same to the extent possible because exchanges are an exception in the Directive. This is called “essential travel”. Specifically, essential travel for this is allowed by the Directive as Indiana parents may leave home to “transport children pursuant to a custody agreement.” There is general consensus between judges that the Directive as presently written should not be used as an excuse to deny the other parent his or her custody (in the event of joint or split physical custody) and/or parenting time.1 In addition, there is a consensus between lawyers and judges that any parent using COVID-19 to deny the other parent parenting time could face sever legal sanctions for using such as a tactical weapon during this global pandemic.

Key to the Directive is “essential travel” does not allow a Spring Break trip. This is non-essential travel. This does not mean a parent does not get his or her Spring Break time, but going someplace, such as Florida, is non-essential travel. Parents can take their kids with them for essential travel, such as for medical care,2 to the grocery3 or to and from any public and private pre-K-12 schools (although most are closed).4 However, parents should be aware that these institutions must provide social distancing between children of six-feet per person to the greatest extent possible.5

What is not said in the Directive is that during and after the Directive’s operation,6 trial courts will consider denial of parenting time and other activities relating to disputes between the parents about the Directive by what is in the child’s best interests. This is common sense, but hard for parents who both love their children and want to spend time with them to sometimes properly consider. For instance, if a parent ignores the Directive and takes his or her children on vacation to a state not under quarantine, the court may later find him or her in contempt and this could even lead to a custody modification in the right circumstances, as well as an attorney’s fee award.

Unlike any time in the history of the integrated global economy has so much rested in the balance. The courts and lawyers are ready, willing, and able to assist with meeting the children’s best interests. In this time of uncertainty where misinformation is rampant, parents who have to exchange their children under the Directive must understand what is expected of them. This blog post is structured help educate parents about their duties with children from paternity or divorce actions under the Directive. Dixon & Moseley, P.C. handles a wide range of custody, divorce and paternity cases throughout the State. This blog post is written for general educational information and is not intended as legal advice. It is an advertisement.

Directive 16(e).

Directive 7(a).

Directive (7)(b).

Directive (7)

Directive 14(l).

Indiana trial courts and their judges may look at emergency motions to limit parenting time with a more critical eye as they are limiting their operations to mitigate spread of COVID-19. Having to address an emergency contempt because the other parent refuses to transfer the children because of COVID-19 without cause—when, again, courts are trying to balance remaining open to provide emergency relief in civil cases and provide due process to arrested and incarcerated individuals and closed otherwise to minimize the spread of the virus—is unlikely to be tolerated by court with the violating parent. On the other hand, there are numerous theoretical situations where the child’s best interests may be served by a change in parenting, preferably by agreement, such as if a parent is exposed. Court’s ultimately are open to meet real and immediate risks to the children.