The government has ordered family to stay at home unless you meet certain exceptions. One of the exceptions is to transport children pursuant to a custody agreement or court order. Therefore, the rule cannot be used to avoid the exchange of a child.
But the issue already cropping up is should the child be exchanged where the other parent or that parents household has been exposed to the virus, is not following the Safer at Home rules or individuals in the receiving home have exemptions to following the rules and therefore increased risk of exposure and then passing the virus to the other parents household because the child is going back and forth. We are in uncharted territory here. This is a debate that family law attorneys are having right now and there is no prior precedent or guidance from the court we can rely on to give you a solid answer. As always, there are to many factors or circumstances involved to cover all of them here. Hopefully the age-old rule of being ‘reasonable’ under the circumstances will prevail for most families. But many families cannot agree on what is reasonable.
We start with the premise that court ordered or agreed upon placement schedules must be followed and are deemed to be in the child’s best interest unless the child will be harmed by the exchange. Obviously if one family has been exposed to the virus, not sending a child there seems like the most reasonable thing to do. Likewise, a family who has persons ‘at risk’ in the household if exposed would, reasonably, not want the child to come over until the risk of exposure is past. Hopefully both sides will understand. They can consider agreeing to ‘make up time’ when the danger passes.
But what if a parent withholds placement because they believe the receiving family is not following the rules and so they do not want to expose the child nor his/her family by having the child going back and forth. This is difficult, specially if the receiving parent asserts all is safe and this is just an excuse to not to send the child. This is difficult and will usually result in litigation while also putting the child in the middle. The court will want to hear the facts that justifies both sides decision.
It can be expected the courts will impose sanctions on whichever parent the court feels did not act reasonably.
What if the receiving party has an exception to the Safer at Home rules due to a critical job. First of all, that parent has to consider for the sake of his/her whole family, not just the child going back and forth, if the child should stay in his/her household during the crisis. He/she also must be considerate of the apprehension of the other parent. Error on the side of caution. Likewise, the other parent should be prepared to agree to an adjustment of time following the crisis to allow for making up the time lost.
But what if the parent with the exemption refuses to make modifications? Should the parent who has the child refuse to exchange the child? Will the parent get in trouble? We do not know. Again, when this is all done, we will be back in court and the court will look at all the facts and circumstances. The court will have to determine who acted reasonably and who not. Then impose whatever sanctions the court deems appropriate.
Bottom line, as we started out with, is both sides need to act reasonably and consider the circumstances of each family and the best interest of the child. One parent might lose more time with the child then that other during the crisis but if both sides are considerate, they can work it out and the child is the winner.
Hart Law Office
Attorney Eric Hart ([email protected])
Attorney Richard Hart ([email protected])
207 E. Buffalo St.
Milwaukee, WI 53202
Q: What is a divorce?
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