Delaware Family Law Update: The Impact Of "Shelter In Place" Orders On Families

Morris James LLP
Delaware Governor John Carney issued two modifications to his State of Emergency declaration on March 22, 2020. Starting Tuesday, March 24, 2020, Delawareans must stay at home whenever possible and all non-essential businesses in Delaware must close. The new set of orders are intended to fight the spread of COVID-19 in the state, which had 56 confirmed cases at the time the orders issued.

Here is what the new orders mean for separated and divorced parents of minor children in Delaware:

  • The Order allows daycare centers to remain open. Many, however, are electing to close, by all reports.
  • If you are a joint legal custodian with your co-parent, you are expected to make a joint decision about whether to continue to send your children to daycare if the center remains open, or what care arrangements to make for children if the center is closed. (You are a joint legal custodian unless a court order provides otherwise.) If you are unable to agree, however, Family Court often allows each parent to make his or her own determination about what care arrangements to make for children when the children are with each parent. Even if one parent’s workplace is closed and the other continues to work, without a first right of refusal provision in a court order regarding custody, the parent who is at home may not keep the children during the workday on the working parent’s time, absent agreement. Similarly, the parent who is at home is not automatically the working parent’s daycare provider absent an agreement of the parents.
  • Oftentimes, custodial exchanges are designated to occur at school or daycare in the morning and afternoon. If school and daycare are closed, the child’s care for the day is typically the responsibility of the parent who was to drop the child off at school or daycare in the morning. By way of example, if Mother has the children overnight on Mondays until drop off on Tuesday morning at school or daycare, and Father picks the children up from school or daycare in the afternoon, Mother would typically arrange for care of the children until Tuesday afternoon/evening when Father would ordinarily pick the children up. 
  • Many custody orders contain provisions allowing for other adults who are well-known to the children to assist with transportation of the children. This may be particularly necessary with so many parents working remotely from home. There is nothing in the emergency orders which prevents this from continuing to happen. As a general matter, children should not be withheld from a custodial parent because another adult is sent to transport a child. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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