As stay-at-home orders continue for Indiana, many parents have been denied parenting time on the grounds of COVID-19. The Chief Justice of the Indiana Supreme Court, Loretta Rush, issued an order on March 31, 2020 that parenting time orders remain in force during COVID-19. This means that drop-offs and pick-ups should continue.1 Governor Holcomb’s stay-at-home orders have all made exceptions for court orders (which would include custody and parenting time orders) to be excluded from the stay-at-home orders. This blog explores what you can do if you are being denied parenting time and other parenting time considerations during the COVID-19 pandemic.
First, if you are being denied parenting time by the other parent claiming it is unsafe to have parenting time exchanges due to COVID-19, you should talk with your counsel and consider filing an emergency motion to enforce parenting time and contempt to restore your time. It is generally unhealthy for children to go extended periods of time without having parenting time with the other parent. Contrary to some myth, Indiana trial courts are open. While they may be delaying non-emergency cases, trial courts are open and have contingency plans to address emergency matters.
Second, if you are being denied your parenting time, you need to assess if there is a valid reason that a contempt and enforcement action would fail. For instance, if you live in a bordering state and have to cross state lines to do parenting time exchanges, is there a quarantine period that may prevent or hamper same? The out-of-state parent is bound by any executive order of his or her governor. Also, while most health care workers2 are exchanging children without issue, if they become exposed to COVID-19 or are treating those patients, it may be that court would not find the parent withholding exchange of the children in contempt due to the risk to the child. In reality, this is a common-sense analysis a trial court will apply in any contempt hearing.
Third, not all parents who have children they exchange, have acrimonious relationships. If the do, sometimes they can put their differences aside and rise to the occasion in times of extremis. In these cases, the firm has represented parents who by agreement temporarily modify their parenting time so the child(ren) is/are not exercising actual, in-person time with the parent on the front lines of COVID-19. This is what courts and lawyers would like parents to do as all systems, including the legal system, are strained at this time. A good way to do this would be to enter into an agreed entry to allow the parent working in the COVID-19 environment to skype or otherwise have regular in-direct contact with the children for a period of time until the COVID-19 virus is under control. With this type of working together, the parents can then explain to the children why this is occurring so they understand why mom or dad is only talking with them by phone, Skype or on Facetime. The fair way to address the parenting time parent is forgoing this parenting time due to their profession, would be to give the parent make up time for lost days, perhaps out of the summertime.
Ultimately, the COVID-19 virus is such an economic and physical health challenge to our way of living, there is no comprehensive set of domestic laws to address how parents should handle custody and parenting time under the specifics of their situation, except the guidance provided by Chief Justice Rush. However, know that if the matter does wind up in court, the court is going to make an order that is in the children’s best interests. So before you litigate, ask yourself in this unique time in the history of the world, what is truly in the children’s best interests? Then make your decision with skilled domestic counsel.
Dixon & Moseley, P.C. attorneys handle all aspects of family law matters in all of Indiana’s 92 counties and have handled several emergency matters related to COVID-19. We hope this blog provides you with some general understanding that the courts are open to meet the needs of a child in his or her best interests, even now in the midst of the COVID-19 emergency. What is in the children’s best interest in your case? Is it a temporary agreement or a contempt and enforcement action? Or is there some other remedy that you can agree to that makes sense to protect your children and meet their best interests? This blog was written by attorneys at Dixon & Moseley. It is written to provide general educational information only. It is not intended to be used as legal advice or is it a solicitation for services. It is an advertisement.