By: Plog & Stein, P.C.
Over the last few weeks and days, all Colorado residents have been beset with the fears and challenges that have come with the Coronavirus epidemic. While the the issues we hear about in the media range from serious and real concern regarding health to those regarding groceries and toilet paper, nothing is really being said about how this virus is impacting child custody and divorce cases.
Understandably, many people have questions and fears related to their children and their safety. Do they have to go for parenting time (visitation)? What do I do when the other parent won’t let me have my parenting time because they are concerned about COVID? Am I required to allow parenting time given the current situation? Will I get in trouble if I don’t? Are the courts even open? These are some of the questions our Denver family law attorneys have faced and dealt with over the last few weeks.
The bottom line is that COVID-19 has raised a whole series of questions that no attorneys in Colorado, or perhaps the nation, have had to deal with before, until now. To further add confusion to the situation is the fact that there are no written directives from the courts, or past case law precedents, for dealing with COVID-19 and parenting time. One cannot fault the courts, as this is all new to them as well.
Generally, it is any court’s expectation that orders are to be followed. That does not mean everyone will do so and we have seen cases in which people have blatantly just said they are not going to allow visitation to proceed. Given the lack of clarity, the best advice at this point is for people to use common sense and good judgment, and to adhere to the normal course of business. That said, if there is truly a situation in which one parent knows (and can prove) that the other parent is going to put the children at risk, there are legal measures that can still be taken to protect the children, such as a Motion to Restrict Parenting Time pursuant to C.R.S. 14-10-129.4.
Are Courts Open During COVID-19?
To be clear, all of the Denver area courts are functioning, though in a limited fashion. Specifically, most of the courts, whether Douglas County or Boulder, have indicated that they are still hearing emergency family law cases. However, those emergencies have been limited to either restraining/protection orders or motions to restrict parenting time. With those cases, the courts are accessible and hearings can ultimately be conducted either in person or likely by phone. Additionally, while courts are not going to conduct hearings aside from those two distinct emergency situations, they are still operating to the extent that documents can still be filed (likely by mail without an attorney) and limited business can still be conducted. Attorneys have the ability to file anything electronically and Colorado has now made that option available for non-attorneys as well.
Beyond dealing with emergency situations, the Colorado courts are essentially closed to public access. How long the closures will vary. For example, Jefferson County indicates it will be closed for the normal course of business activities until May 1. Arapahoe and Douglas County indicate they will be open normally again as of April 3. All of this is, of course, subject to change depending on how the ongoing COVID-19 situation unfolds. The Colorado Judicial Branch does have a COVID-19 section on its website and provides county-by-county information regarding what each judicial district court is going.
Keep in mind that many law offices, such as ours, are open. Attorneys are generally able to work and conduct business remotely, including meeting with clients or potential clients via telephone or a web-based service, such a Zoom. We understand everyone’s hope is that things resume to normal soon. For now, we must all make due in this new, temporary reality. that new reality includes us being available and ready to act, just not in-person.
Coronavirus Affecting Parenting Time and Child Custody Orders
As relates to parenting time and child custody orders, we are all aware that the Colorado governor and various counties or cities have put forth various orders or directives regarding staying at home, etc. Some of those orders, such as the one issued in Denver on March 23, indicate that people may travel for purposes of caring for a family member. “Essential travel” includes travel to care for minors or dependents. Additionally travel to return home from other jurisdictions is also authorized. The same holds true for the orders issued for Douglas, Arapahoe, and Adams Counties on March 25, 2020. The order issued by Governor Polis on that same day is a little less clear in that it says travel to care for a “family member,” without specifically stating “child.” The Colorado order does allow travel to return to a residence. Looking at these order objectively, it is implicit that parents can travel and have kids travel to and from homes for parenting time. None of these orders expressly restrict or suggest that parenting time and parenting time exchanges are to cease or that kids cannot go from one home to the other. There is not an absolute ban on leaving your home and it will not likely be looked favorably upon by a court if one parent denies parenting based solely on the COVID-19 crisis or these governmental orders. It would have been nice if the counties or State had given more clear directives to families and attorneys as relates to parenting time. Unfortunately, that did not happen. Given the chaos, it’s understandable that something like this might slip through the cracks when crafting these orders.
Thus, things are up for interpretation. My interpretation is that orders do need to be followed, though as an attorney, I could argue either side of a parenting time dispute tied into COVID-19.
It should be noted that there are many people operating under long-distance parenting plans, where they may be required to allow their children to go out of state for visitation, such as for spring break. There is no governmental restriction on this. At the same time, no parent wants their child to fly on a plane right now. With no real guidance from the court systems or these governmental orders, it might be helpful to try to engage in open discussions with the other parent to see about delaying trips to a later time, make-up parenting time, etc. Not all parents get along and there are going to be parents who were difficult before this crisis and who will be difficult during it as well. Keep in mind that airline flights are somewhat limited and the federal government has discouraged, not banned, domestic travel.
As a parent myself, I understand the concerns, fears, and frustrations that all parents have particularly given the unknowns at this time in terms of how courts expect COVID-19 to be handled related to parenting time.
If you have questions or concerns regarding your child custody and visitation situation it would be advisable to consult with a family law attorney. This also holds true if you are in the midst of or starting a divorce case.