On March 10, 2020, the State of Michigan identified the first two presumptive-positive cases of the novel coronavirus (COVID-19) in its borders. That same day, Governor Gretchen Whitmer issued an executive order declaring a state of emergency based on her authority under Art. 5, Sec. 1 of the Michigan Constitution of 1963, the Emergency Management Act (MCL 30.401 through 30.421) and the Emergency Powers of the Governor Act (MCL 10.31 through 10.33). “The governor shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists.” MCL 30.403(4). “After making the proclamation or declaration, the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1). To further this objective, the governor issued Executive Order 2020-21 on March 24, 2020 (and later extended by Executive Order 2020-42 on April 8, 2020) which required Michigan residents “to remain at home or in their place of residence to the maximum extent feasible.” Overall, “[t]he order limited gatherings and travel, and required workers who are not necessary to sustain or protect life to stay home.” How does this impact child custody and parenting time orders when divorced parents live in separate households? Are children to stay at home with the custodial parent?
Actually, Executive Order 2020-42 explicitly addresses the issue of child custody arrangements. Section 12(b)(4) provides that “[i]ndividuals may also travel as required by law enforcement or a court order, including the transportation of children pursuant to a custody agreement.” In addition, the Michigan Supreme Court issued the following statement on March 16, 2020 concerning family law matters involving children:
- “With schools closed and courthouses limiting operations to reduce exposure to COVID-19, parents who live apart might be confused about changing family situations and their court orders. The Supreme Court wants to remind parents that all court orders for a child’s custody, parenting time and support are still in force. Only a new court order can change that. Parents should continue to follow their court order.”
- “If future government decisions restrict travel or, if a child’s safety is an issue, parents should work together to keep the child’s access to both parents as close to the normal arrangement as possible. Remember that children might also be nervous about current events and need reassurance from parents. If it is necessary to share parental responsibilities in ways different than the court order provides, parents should cooperate with each other to further the child’s best interests. If parents are not able to agree between themselves how to do this, their court order continues to control what they should do.”
- “Child support payment processing is expected to continue. However, if a person changes jobs or a court order changes, there may be a delay in updating automatic payment withholding from a paycheck. If a parent has child support obligations and money is not automatically withheld from his or her pay, the parent should be sure to make the payment through the State Disbursement Unit. Parents can also make payments through PayNearMe at CVS Pharmacy, 7-Eleven, Family Dollar, and Casey’s General Store. Parents are encouraged to sign up for MiChildSupport to see their child support case online.”
The clear directive is that parents are expected to follow all court orders and not withhold visitation due to a general fear of COVID-19. Parents who refuse to follow any custody or parenting time orders can be compelled to show cause before the circuit court judge why he or she should not be held in contempt of court. It is not enough that the custodial parent has an unverified concern that the non-custodial parent or members of that household have possibly been exposed to someone with the virus to withhold parenting time. It is also not enough that that the non-custodial parent is a health care worker or works in an essential business that subjects them to exposure to withhold parenting time. If a parent wished to modify the court order, then a motion must be properly filed and a hearing must be held.
Generally, a parent looking to modify child custody or parenting time must show that there was proper cause or change of circumstances to revisit the existing order. If the case meets this threshold, then the court must consider all of the best interests of the child factors and decide if a change is warranted. Does COVID-19 amount to proper cause or change of circumstances? In Florida, emergency room physician Dr. Theresa Greene briefly lost joint custody of her four-year old daughter because a trial judge was concerned that her profession causes her to come into contact with COVID-19 patients. She appealed the decision and won, getting her joint custody restored immediately. However, this case shows that there are judges willing to consider custody and parenting time modifications if the circumstances are such. What if the child has a preexisting condition or an autoimmune disease that makes contracting the disease more deadly? What if there is a person in the non-custodial parent’s household that is, in fact, positive for COVID-19? While a parent cannot unilaterally stop visitation against court order, he or she may find a judge who will consider their unique position during this crisis and change custody or parenting time accordingly.
Despite limited operations, courts are still conducting business and will hear emergency motions and hearings by phone or video conferencing to resolve problems. In addition, the law offices of Kershaw, Vititoe & Jedinak PLC remain open to meet all of your legal needs. A skilled lawyer can efficiently file your motion and make arrangements with the circuit court to schedule a hearing as soon as possible. If you or a loved one have questions about any family law issue during the COVID-19 crisis or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.