The pandemic brings with it many concerns and question marks — especially when it comes to complicated matters such as child custody rules during a time when many are being asked to stay home and practice social distancing.
Lisa J. Gill and Taylor Oyaas are attorneys at Thomas, White & Gill, a family law practice that provides customized, comprehensive legal services to clients in Tennessee and North Mississippi. Here, they share with us their expertise as they answer this question:
What guidance can you offer parents dealing with questions about COVID-19 and custody issues?
People seem most concerned with the issue of children being exchanged during periods of a “travel ban.” Parents feel unsure whether they can or should exchange their minor children during the COVID-19 crisis. This will come up either in one of two scenarios: (1) a child is currently at a parent’s home out-of-state while that parent is exercising parenting time; or (2) a parent is planning to drop the child off to the other parent who is located in the same city. Parents are confused because state and local governments have issued “shelter in place” orders with travel ban requirements, yet they are required to transport and exchange their children with each other according to a state custody order or parenting plan. Which order are they supposed to follow?
You first need to look at the state or local government order. For example, the Memphis Executive Order No. 03-2020 (“Safer at Home”), executed by Mayor Jim Strickland on March 23, 2020, places restrictions on domestic travel. Although this Executive Order does not specifically address travel required for the exchange of a child in regard to a custody order, it does permit “Essential Travel,” which specifically includes (a) travel required by court order (i.e. a parenting order), and (b) travel required to return to a place of residence from outside the jurisdiction. Either of these definitions of “Essential Travel” could apply to allow travel related to court-ordered parenting time. Still, we are seeing a number of parents withholding minor children on a more vague basis of “concern for safety or welfare.” At this point, we do not know precisely how that will play out in a courtroom setting, but there is not a legal basis for doing that based on any “Shelter In Place” order.
We will also likely run into several conflict-of-laws issues. Orders issued from a higher government generally supersede conflicting orders issued from a lower government. (Federal orders > State orders > Local orders). Therefore, in theory, a state parenting order that requires parents to exchange the children at given times would supersede a local executive order (i.e., a city-issued “Stay in Place” order) that restricts travel. For example, even if the Memphis Executive Order did not specifically exempt travel for purposes of complying with a court order, then a state parenting order should still govern, which would require parents to exchange their children according to the state order, despite the local order and local travel bans. This will become far more complicated if we see state-wide or nation-wide “Stay in Place” orders without specific exemptions. States such as Indiana, Illinois, and Michigan have issued state-wide executive orders that specifically exempt any travel requirements necessary to comply with a custody agreement.
For these reasons, a parent certainly could not solely rely on a “Stay In Place” local order that specifically exempts their travel for that purpose, or that is arguably superseded by the state parenting order; there would have to be something more. At a minimum, a parent refusing to comply with court-ordered parenting time would need to seek the advice of an attorney to determine if he or she has a basis for why the child would be safer with one parent versus the other, given these current circumstances.
Thank you, Lisa and Taylor.
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