How to Handle Your Parenting Plan During COVID-19

By Jacqueline A. Leary (Botchman)

Taking care of your child during a pandemic is difficult enough without the added factor of co-parenting with your ex-spouse. This is putting aside the fact that in addition to being a mother or father, you have also become your child’s teacher. But what avenues do you take if your spouse refuses to abide by social distancing guidelines? Is a letter from your child’s pediatrician stating that he/she should remain in one home enough to change a parenting plan? The answer to this question is likely, no. Also, what do you do if your ex-spouse refuses to enforce the home schooling requirements provided by your child’s school district? Is the lack of ability of one parent to promote learning through the use of technology enough to change the parenting plan? Again, the answer is likely no.The effect of COVID-19 on the Circuit Court – Family Division.

On March 11, 2020, the World Health Organization declared COVID-19 a pandemic due to its severity and rapid global spread.

The Governor of New Hampshire issued an executive Stay-At-Home Order, which went in to effect on March 27, 2020. This Order closed all nonessential businesses. “We can’t stress this enough – you should stay at your house unless absolutely necessary,” Governor Sununu said in a statement on Twitter.  “Of course, we won’t prevent you from leaving your home to go for a walk, or when heading to the store for groceries, or going to an essential job.” Id.  This Order is currently in place until May 4, 2020.

The New Hampshire Supreme Court issued an Order in regard to the New Hampshire Circuit Courts, suspending in-person hearings, with the exceptions of certain cases, through May 4, 2020 and/or the last day of the Declared State of Emergency. See N.H. S.C. Order, Renewed and Amended Order Suspending in-Person Court Proceeding Related to New Hampshire Circuit Court and Restricting Public Access to Courthouse (March 27, 2020) (“Order Suspending In-Person Hearings”).  This Order expressly does not prohibit court proceedings by telephone, video, teleconferencing, email or other means that do not involve in-person contact.” Id. at § 15.

Nothing in the Governor’s Executive Order or the Supreme Court’s Order prevents parents from complying with their parenting plan.  Therefore, in absence of an emergency to your child’s health, safety, or welfare parenting time exchanges should proceed as schedule.

Does social distancing requirements override a Court Order?

Likely, no.  It is challenging to create an effective social distancing plan for a child when his or her parents are divorced or separated, especially when the child is going back and forth between two households.

So far, in New Hampshire, the family courts have said that parents should follow existing court orders and that the social distancing requirements alone are not an emergency that justifies changing present parenting plans. Disobeying a court order or withholding visitation during this time will not be tolerated and may even result in contempt of court and sanctions, like attorneys’ fees.

If you have valid concerns about the health, welfare, and safety of your child, then you should try communicating with your ex-spouse to what arrangement you can meet voluntarily to reduce risks to your child. If this avenue does not work, then you should seek guidance of a family law attorney. Most family law attorneys are still available by e-mail, phone, and through video-conferencing, such as Zoom.

The New Hampshire Circuit Court – Family Division is closed to the general public, but will be open for individuals filing for emergency relief and for a few other limited purposes. The Supreme Court’s Order Suspending In-Person Hearing outline a few exceptions, including, but not limited to:

  • Requests for orders of protection for domestic violence under RSA 173-B, stalking under RSA 633:3-a and juvenile abuse under RSA 169-C:7-a, and hearings on such orders.
  • Requests for child-related emergency orders in divorce/parenting cases under RSA 461-A and hearings on any emergency relief ordered.
  • Temporary hearings in divorce/parenting cases.
  • Hearings on the establishment or modification of child support.
  • Division for Children, Youth and Families’ requests for emergency orders and hearings on such orders, as well as other hearings in RSA 169-C cases if children are in out-of-home placement.

Although the Family Courts encourage frequent and regular contact with both parents and will not condone withholding visitation, if your child’s health is truly at risk, a judge may intervene.

A New Hampshire Court may grant ex parte and emergency relief when it appears that “immediate and irreparable injury, loss, or damage shall result to the applicant, the children, or the marital estate before the other party or attorney can be heard.”  Family Div. R. 2.9(B); accord RSA 458:16, II(a); RSA 461-A:9, I.

An example of such an emergency is if one parent is following strict precautions to keep a high-risk child safe from COVID-19, like self-isolation and working from home, while the other parent has COVID-19 or has been exposed to someone with confirmed COVID-19. A Judge may find that it’s in the child’s best interests to modify visits for a limited period of time and schedule make-up visits for a later date.

Parents should continue to abide by their parenting plans, adhere to all of the recommended guidelines and health practices, and only seek emergency modification of their parenting plan if “immediate and irreparable injury, loss, or damage” will result, such as an actual risk to your child or exposure of your spouse is confirmed.

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