Custody and Co-Parenting During the COVID-19 Pandemic

States across the country, including Colorado, are responding to the COVID-19 pandemic by issuing orders that require individuals – except in certain situations – to stay at home. Colorado’s “Stay-at-Home” Order was recently lifted, and a “Safer-at-Home” Order went into effect on April 27, 2020. While this new Order provides less strict guidelines for slowing the spread of the virus, it still strongly encourages individuals to maintain social distancing practices and to stay at home when possible.

These measures understandably raise questions and concerns for parents whose children, pursuant to a custody order, spend time in more than one household and/or attend visitation with their other parent. The country-wide measures and restrictions imposed in response to the COVID-19 pandemic have created uncertainty for many parents, who must now navigate co-parenting while complying with court orders.

Custody and Parenting Time Orders, Generally

Parents who seek enforcement of these orders have certain legal remedies available to them depending on the applicable state’s laws. In most states, including Colorado, there are three primary ways a parent may enforce a custody and/or parenting time order.

Assistance from Law Enforcement

When a parent withholds a child in violation of a custody and/or parenting time order, the parent seeking to enforce the order may request assistance from the police. The police officer, after reviewing a copy of the order, will enforce the order on the parent’s behalf.

Motions to Enforce

If provided by applicable state law, a parent may file a “motion to enforce” with the court to compel the other party to comply with a custody and/or parenting time order. Since laws in many states typically require motions to enforce to be set for a hearing as soon as possible, these motions are usually quickly addressed by courts upon filing.

Contempt Motions

Parents are entitled to file motions for contempt when the other party refuses to comply with a custody and/or parenting time order. While contempt motions are often more cumbersome to litigate than motions to enforce, a benefit of contempt motions is that moving party may request the court to assess attorney fees and/or litigation costs – incurred as a result of enforcement of the order – against the other party.

State-Wide Orders and County Public Health Orders

It is important to note that there may be differences – including in effective dates and specific provisions – in applicable state-wide orders and orders issued in applicable individual counties and municipalities. Any stricter local orders will supersede statewide guidance. Colorado’s state-wide Stay-At-Home Order – which was effective through April 26, 2020 – provided that “Necessary Travel” includes travel to transport children between separate households pursuant to a parenting plan or other agreement governing parental responsibilities. To help avoid the confusion of multiple Orders, several Colorado counties – including Arapahoe, Douglas, Adams, Boulder, and Jefferson County – formally adopted the state-wide Order. In contrast, the Denver Department of Public Health & Environment’s Order – effective through April 30, 2020 – did not explicitly state whether travel to conduct parenting time exchanges constitutes “Necessary Travel.”

Judicial Responses

Parents seeking to enforce custody orders should also note that certain courthouse operations may be temporarily suspended. The Supreme Court of Colorado issued an Order on March 16, 2020 regarding COVID-19 and the operation of state courts, providing that only matters of “public safety” or “emergency” – including those involving protection orders, motions to restrict parenting time, and parental abduction prevention – may be heard in person. Each Colorado judicial district also issued individual Orders and/or guidelines regarding the operation of specific courthouses during the COVID-19 advisory. These district-specific Orders and/or guidelines have varying effective dates and provisions regarding rescheduling non-emergency matters, conducting remote hearings, and other important logistical procedures. All Colorado judicial districts either prohibit or h3ly discourage individuals from entering any courthouse if experiencing COVID-19 symptoms, diagnosed with COVID-19, or if the individual has come into contact with someone diagnosed with COVID-19 in the last 14 days.

Response by Law Enforcement

To make matters more complicated, law enforcement agencies across the country are temporarily limiting their responses to low-risk incidents in order to maintain capacity to respond to critical emergencies. The Denver Police Department implemented modified temporary procedures to limit in-person interactions between Denver police and the public. This means that local police officers may be less likely to respond in person during the COVID-19 advisory, especially if there no crime is in progress and/or imminent threat to an individual’s safety.

Enforcing Parenting Time During the COVID-19 Pandemic

Parents seeking to enforce court orders during the COVID-19 advisory may run into obstacles, and immediate legal recourse may not be an option. Many parents – if their matter is deemed a “non-emergency” by the applicable judicial district – may have to wait weeks or months for the court to address their parenting time issue. Additionally, it may be difficult for parents seeking to enforce custody orders to obtain assistance from law enforcement. Despite these temporary legal challenges, parents can still take other measures to resolve parenting time disputes and/or co-parenting issues.

What Parents Can Do to Address Parenting Time Issues Without Assistance from Courts and Law Enforcement

Although immediate legal recourse may be temporarily unavailable to parents seeking to enforce custody orders, those who violate court orders are still subject to legal consequences under the applicable state’s laws. The varying measures implemented in response to COVID-19 do not automatically give parties complete freedom to withhold children from their other parent.

The refusal of parenting time may be understandable under certain circumstances, such as if a parent or member of a household has been infected by COVID-19 and/or is immunocompromised. Other situations may cause more uncertainty. Parents may be unsure as to whether they should withhold their children from the other parent, including if traveling long distances to conduct parenting time exchanges is necessary, the other party may have come into contact with an individual diagnosed with COVID-19, or if the parent is nonetheless concerned about the child’s exposure to the virus while in the other party’s care.

Navigating co-parenting during the COVID-19 advisory may be challenging, but there are things parents can and should do to minimize willful violations of court orders while keeping themselves and their children safe.

• Avoid impulsively withholding your child from his or her other parent based on speculative concerns about COVID-19 exposure.
• Have a candid conversation with your child’s other parent about both of your concerns. To the extent possible, work together to come up with a plan that is reasonable and addresses everyone’s needs – including the needs of the child and those of both parents.
• Coordinate with the other party to make sure everyone is on the same page about your child’s academic progress, physical and mental health, and any other important matters.
• Be flexible and accommodating during this time. Many parents must work additional hours during the COVID-19 advisory or have been financially impacted as a result of decreased or loss of employment. Be reasonable and understanding about any economic and job-related hardships.
• If you pay child support pursuant to a court order, continue to comply with the support order – to the extent possible – and communicate with the other party if you are unable to make full payment.
• If possible, coordinate with the other party to make up any missed parenting time and encourage frequent contact – via text, phone, FaceTime, Zoom, Skype, etc. – between your child and his or her other parent.
• Remember that unjustifiably withholding your child from his or her other parent is not in your or the child’s best interest.
• Understand that, while you and your child’s other parent may not always get along, it is in your child’s best interest for parents to act reasonably, minimize conflict, and remain civil.

Keep in mind that public health must be prioritized during this time. Continue following national, state, and/or local requirements and restrictions regardless of whether you are experiencing parenting time issues. If possible, take additional precautions to ensure the safety and health of you and your child.

• Stay up to date on the Center for Disease Control, state, and local guidelines on public health and safety during the COVID-19 advisory.
• If you are unsure about specific logistical procedures – including those implemented in applicable states, localities, judicial districts, law enforcement agencies, childcare providers, schools, or supervised visitation centers – call and/or check the agency’s website for guidance.
• Unless it is explicitly permitted by the applicable judicial district or division – and provided there are no concerns as to COVID-19 exposure – do notenter any courthouses under any circumstances.
• Comply with applicable social distancing requirements and avoid physical contact with others unless absolutely necessary.
• Frequently wash hands and clothing, disinfect surfaces in your home and vehicle before and after your parenting time, and encourage your child’s other parent to do the same.
• Consider whether any household members – either in your home or in the other party’s home – are immunocompromised, experiencing COVID-19 symptoms, and/or have recently come into contact with anyone diagnosed with COVID-19. Again, it is important to be reasonable and address any concerns about exposure with your child’s other parent.

Although your first instinct may be to take matters into your own hands, especially during a custody dispute, consider the impact those decisions may have on your child and your ability to successfully co-parent with the other party. The attorneys at Woody Law Firm are here to help you navigate these uncertain times and place the focus in your legal matter where it belongs: on your children.

Kinnett & Cordes specializes exclusively in family law and family law mediation. We can specifically assist you with complex divorce litigation, child custody disputes, child support modification and enforcement, non-traditional family formation and dissolution, adoption, and dependency and neglect matters.

Call us today at 303-968-1711 to schedule a free consultation!