Co-Parenting in the Pandemic
Where does co-parenting go during a pandemic?
On March 14, 2020 the State of Georgia declared a state public health emergency due to the coronavirus, COVID-19. Almost immediately, local governments began issuing their own orders, further limiting social interactions and closing schools.
Then, on the afternoon of Thursday, April 2, 2020, Georgia Governor Brian Kemp issued a temporary Shelter in Place order. His order requires that all residents and visitors are to remain in their home, with limited exceptions, until April 13, 2020. This order also expressly supersedes any other order or ordinance of a city or local government. The order was then further clarified the next day (April 3).
This is all well and good for the safety of the general public; however, what is a separated parent to do about custody exchanges? Can childcare workers still come to the house? Can a parent withhold parenting time if that parent doesn’t think the visit is in the child’s best interest?
As with everything in the law, it depends, but generally parenting time should continue and the pandemic should not be used as an excuse to restrict the other parent’s custody time or otherwise overreach without legal justification.
Should children go on custody visits?
Yes. In his Friday (April 3) afternoon clarification order, Governor Kemp made clear that no provision of the Shelter in Place Order “shall limit, infringe, suspend, or supplant any judicial order, judgment, or decree, including custodial arrangements …” and, further, that this order shall not be used “as a defense to an action in violation of a judicial order, judgment, custodial arrangement, or decree by any court.”
Georgia Superior Courts have also released guidance that parental time with children is essential and should continue. If the parenting plan is determined by the school calendar, it should continue to follow that calendar even when school is not in session. The thought process appears to be that a child of separated/divorced parents has two homes and, therefore, the child has the ability to “shelter in place” at either home.
In these times, communication is key. Discuss with the other parent social distancing parameters and hygiene practices. When in doubt or if there is a disagreement, refer to recommendations from public health officials and attempt to align with the other parent on a baseline standard.
What if the other parent is not is practicing social distancing or because of their essential job that parent cannot practice social distancing? What if my child (or another family member in my home) is high risk?
This is the gray area that will likely be evaluated on a case by case basis. Reasonableness after consideration of all circumstances will become paramount. For example, if a parent (or someone in that parent’s home) is not practicing social distancing, it may be reasonable to withhold parenting time temporarily until that person begins following local orders and recommendations.
As another example: if a child is high-risk, it may be appropriate temporarily to halt visits so that the child can practice self, in-home isolation. Communicate concerns and possible solutions with the other parent. It may be possible to reach an agreement where virtual visits (via FaceTime, Zoom or Skype) occur regularly while the “Shelter in Place” order is in effect and schedule make up time once the order is lifted.
What if one parent (or someone in that home) is engaged in an essential service industry, such as healthcare? One possible solution is setting up “disinfecting areas” at the door whereby all outside items—bags, clothing, shoes, etc.—are immediately deposited at the door, placed into garbage bags to be cleaned and/or wiped down with disinfectant. These workarounds, although not foolproof, may be a way to reach a compromise with another parent if implemented, rather than restricting any access.
But this is a slippery slope. Again, generally custody visits should continue during the pandemic. Personal fears and anxieties on their own do not warrant withholding parenting time. Therefore, if a parent is considering withholding parenting time, and especially if the other parent is not in agreement, parents are well advised to speak with their legal professionals.
Bear in mind that these concerns are not limited to divorced or separated families. Many families have a parent who is engaged in an essential service industry, such as healthcare. In those cases, if space allows, many families are choosing to “socially distance” even within the home.
One healthcare worker states that, upon returning from work, he undresses at the station, wraps a (clean) towel around himself, and immediately showers in a bathroom that is not used by any other member of the family. These workarounds, although not foolproof, may be a way to reach a compromise with another parent if implemented.
What about nannies or other in-home providers of services?
The State Order provides an exception for visitors “to provide support for the person to conduct activities of daily living or instrumental activities of daily living.” This is broad wording but it suggests that in-home care for children can continue. (The Governor’s clarifying order seems to further make clear that, yes, in-home care to children and the elderly is an essential service at this time.)
That said, for purposes of co-parenting and compliance with the State Order, it is essential that the parents communicate to ensure that the “visitor” is otherwise practicing appropriate social distancing and hygiene practices both inside and outside the home. In other words, the “visitor” should be traveling only from his or her home to yours.
What if the other parent is practicing self-isolation? Can that parent demand the same of the other parent?
Generally, no. So long as the other parent is in conformance with the Order, another parent cannot demand a higher standard. Again, however, if there is a high-risk situation involving the child, all parents are well-advised to speak to their medical and legal professionals before adhering to a lower standard of care.
In sum, the best practices for parenting during the pandemic are (1) be rational and reasonable; (2) engage in effective and regular communication; and (3) follow all legal orders, including the custody order.
If any doubt remains, call your legal professional. These are anxious and uncertain times but, at the end of the day, the children’s best interest remains paramount.
Full Georgia State Executive Order available here.
Clarification Order dated April 3, 2020 available here: https://gov.georgia.gov/document/2020-executive-order/04032002/download
Jessica Reece Fagan is a partner/shareholder at the law firm of Hedgepeth Heredia, LLC. She can be reached at firstname.lastname@example.org.
Hedgepeth Heredia, LLC specializes exclusively in family law, helping clients navigate the challenging issues related to divorce, custody, alimony and child support, modification, legitimation, and contempt actions.