Custody and Parenting Time in the Wake of Covid-19

I have a kid whom I love to death. He is three years old, constantly happy, polite, and perfect. He can be rambunctious, a tiny terrorist, and the devil incarnate, but mostly he is happy, polite, and perfect. Also, he’s a great model and good for marketing – you might have seen him on this website – but that’s beside the point. There is a wonderful family in our neighborhood with several children that are amazing with him, and he plays with them all the time. Or at least, he did – until it was no longer safe to do so. Now he watches from across the street as they play, understanding that we can’t allow him to be within 6 feet of them but not really understanding why (despite all best efforts to explain the inexplicable to a three year old).

Everyone has an opinion on the Covid-19, shelter-in-place, social distancing, and the like. More importantly, everyone also has questions. The questions I’m getting the most from my existing clients are:

• Do I have to send my kid to her father’s?
• Am I allowed to send my kid to his mother’s?
• My ex works at a hospital/nursing home/day care/plague factory – what do we do?

These are all reasonable questions. Two of them have reasonable answers. The third is trickier, but I’ll share with you what guidance I can give.

Parenting Time Exchanges and Minnesota’s Covid-19 Shelter-in-Place Order

Under the Governor’s order, it is very clear that the state expects parenting time exchanges to continue. Of course, this concept is somewhat addressed in the abstract. The state wants exchanges to continue, but that doesn’t necessarily mean it’s a good idea for everyone. All it really means is that the shelter-in-place order isn’t so restrictive that kids don’t get to see both of their parents. So, the short answer to the questions “Do I have to send my kid to the other parent?” and “Am I allowed to send my kid to the other parent?” is, “Yes, barring a court order to the contrary.”

Practical reality, however, can muddy this situation greatly. What if Mom works at a hospital actively treating Covid-19 patients? What if Dad is an in-home care provider to high risk individuals? The hope, of course, is that the parents can work together and come to an agreement about where the children should be, make a plan regarding social distancing and disease mitigation, and, if necessary, determine how long one parent won’t see the kids and when their time will get made up. Not everyone is capable of having these conversations, unfortunately. So what do we do?

Emergency Orders

You may find yourself with a co-parent that’s exposed to the disease that refuses to be reasonable. In such an event, the option of obtaining an emergency order still exists. There’s no guarantee a judge will agree with you that visitation should temporarily halt, but seeking that order is an option. You must provide to the judge your request for relief (in this instance, you are asking for a temporary restriction on the other parent’s parenting time until further order of the court or until some other benchmark is met) as well as a statement justifying that request (in this instance, “The kid’s dad licked someone at the hospital who was attached to a ventilator and refuses to self-quarantine for 14 days.” ).

The judge will typically get back to you with an order within 72 hours (commonly on the faster end of things, right now) and will schedule a hearing date for some time in the future where the parties can debate the issue. That second part is a little fuzzy right now, because we don’t truly know when the courts will re-open. You can get an order, but if the order denies your request there is no real way to know when you’ll be heard by the judge to convince them to give you what you want.

The benefit of this choice is a quick judicial response. The downside (other than the scheduling uncertainty mentioned above) is it is virtually guaranteed to engender animosity from the other parent and further strain an already damaged co-parenting relationship. It can also be costly, in terms of attorney fees. There is, however, another alternative.

Parenting Consultants

If both parties agree, the court may appoint a third party neutral called a Parenting Consultant (PC). A PC can have a broad range of authority; in fact, they can do nearly everything a judge can do when it comes to custody and parenting time. A good PC will first work with the parties to try and help them come to resolution of their disagreement. If they can’t get the parties to agree, then upon request of either party they can render a formal decision about an issue. This decision has the same force of law as a court order. They can be appealed to the district court, and the order appointing the PC will lay out the procedure for doing so.

The advantages of using a PC are many, including reduced cost (each party pays for half of the PC’s fee and does not need an attorney involved), rapid response time regardless of emergency level, and parenting coaching. Additionally, a PC has significantly more access to you, your children, and your children’s service providers (teachers, doctors, therapists, etc.), and they are not beholden to the same rules as the court when it comes to acquiring information. A judge gets a snapshot of your life as best as your attorney can present it within the confines of the rules of evidence and the length of the hearing scheduled. A PC gets to investigate and make thorough and well reasoned decisions without the same restrictions. As such, a decision rendered by a PC can potentially more adequately address the needs of your kids than one coming from a judge.

Given the continued restricted access to the courts in the wake of Covid-19, PCs can be an excellent alternative to emergency litigation when it comes to resolving parenting disputes. Of course, you should consult your attorney before making a decision about how best to address these concerns in your case.

Anthony Toepfer is a family law attorney in St. Cloud, Minnesota who represents people during some of the most difficult times in their lives, such as divorces and child custody disputes, but also during happier times. As a client at Toepfer at Law, you will always be able to receive up-to-date information about your case, and we will always be available to answer your questions and address your concerns. Please contact us through our website, or give us a call at (320) 497-4416 today to schedule a confidential consultation to see how we can help you.