By Katherine Meger Kelsey and Nicole Goodson, both of Kids’ Voice of Indiana
As family law practitioners, we are well aware of the challenges that surround scheduling vacations and travel during school breaks. It isn’t uncommon to have disagreements about where and when children should travel, not to mention with whom. However, the rapid and unpredictable spread of the novel coronavirus (COVID-19), just in time for spring break, has lent new urgency to this issue. Here are some important questions to explore with your clients, as well as some suggestions about how to proceed with any issues that arise.
• What if my child is supposed to travel within the United States with their other parent and I don’t want them to go?
• What if my child is supposed to travel within the United States with me and their other parent doesn’t want them to go?
• What if my child is scheduled to travel overseas with their other parent and I don’t want them to go?
• What if I am scheduled to travel overseas with my child and the other parent doesn’t want them to go?
• What happens if my child gets quarantined while traveling?
• What if my child’s other parent wants to withhold parenting time from me based on the virus?
• Can I withhold parenting time between my child and the other parent due to concerns about the virus and quarantine?
There are no obvious answers to these questions, but ultimately the basic premises of family law prevail, even in light of COVID-19. If a parent is scheduled to exercise parenting time during a school break, the presumption is that the parent is fit and able to make competent and reasonable decisions regarding their child’s health and safety during that time. Thus, that parent should be allowed to make the decision about whether to proceed with the vacation or not. Of course, the non vacationing parent is not without options. Should the vacationing parent choose to travel despite CDC travel warnings or physician recommendations, it is reasonable to expect that the non vacationing parent could petition the court to prevent the upcoming travel, given the circumstances.
Withholding parenting time in the absence of any travel concerns is another issue that you may confront with your clients. Despite the emerging nature of this situation, again, basic family law still rules the day. Absent compelling circumstances, withholding parenting time exposes a parent to contempt and all the resulting sanctions. Whether or not exposure to COVID-19 is a compelling reason is a rapidly changing calculus and must be evaluated based on the best medical information available at that time, as well as recommendations from local health departments. The nature and spread of the disease makes it likely that if a parent has been exposed, a child may have been exposed as well. However, if there is strong evidence that a child has not been exposed where one parent has, this could potentially support withholding parenting time. This reasoning could also be supported by other factors, such as if a child has underlying medical issues that could result in a more severe presentation of symptoms. At this time, given the information we have and the basic principles and laws in family law cases, it does not seem likely that mere concerns about COVID-19 support withholding a parent’s parenting time.
The interplay between COVID-19 and family law drives at the basic policy behind our laws governing families: that fit and competent parents will make decisions for their children based on the children’s best interests. If at any point, a parent is presented with information suggesting that this is no longer the case, then the matter may require judicial review.•
This article was originally published on the Family Law Section blog page. See more from the section at indybar.org/fam.