Many parents in shared-parenting arrangements are concerned about sending their child to the other parent’s home, thereby possibly exposing the child to other sources of COVID-19 infection. Do you have to comply with a Permanent Parenting Plan or court order, and what are the consequences if you don’t?
First, parents are allowed to modify the exchange schedules in a Permanent Parenting Plan if they do so by agreement. If you and the other parent both believe that a co-parenting schedule should be changed to protect your child, and you can agree to a temporary alternative plan, do it. As long as the change is agreed to by both parents there should be no consequences.
If a modification to a parenting plan is not agreed between the parents, either parent who fails to follow the plan may be subject to having the other parent file a petition in court to enforce the plan and/or to have the offending parent held in contempt of court. Do not assume that current stay at home orders from local or state government will protect you. Tennessee Executive Order 22 (March 30, 2020) and Executive Order 23 (April 2, 2020) both state that essential travel, not restricted by the orders, includes “travel required by law, law enforcement, or court order, including to transport children pursuant to a custody agreement.” A parent who violates an existing exchange order may claim immediate risk of harm to the child as a defense, but the general risk of community infection may not be enough to avoid being held in contempt.
It’s difficult to predict how courts will respond to requests for enforcement of parenting plans under these circumstances. If exchanging a child between parents creates an immediate risk of infection (i.e., someone in your home or the other parent’s home has been diagnosed positive for COVID-19 or has been knowingly exposed to it and is in quarantine), it’s unlikely any court would penalize a violation. If the risk from exchanging a child between households is not greater than the general community risk of infection, the best advice is follow the plan unless agreed otherwise.
It is our hope that this information will help you make appropriate decisions in your own circumstances. However, if you have specific questions or concerns for which you need guidance, we encourage you to seek advice from an attorney.
Ted Kern focuses his practice on family law. This column is provided through the Knoxville Bar Association, your trusted source for lawyer referrals. The KBA is a nonprofit corporation that offers community service programs such as the Lawyer Referral & Information Service, speakers’ bureau, and public education programs.
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