Governor Whitmer’s Executive Order 2020-21, requiring people in Michigan who are deemed non-essential workers or not engaging an essential activities to stay at home, has caused many parents to question whether they are required to abide by their custody and parenting time orders to return their children to the non-custodial parent.
Section 7(b)(4) of Executive Order 2020-21 specifically states that individuals may travel “[a]s required by law enforcement or a court order, including the transportation of children pursuant to a custody agreement." Furthermore, on March 16, 2020 the Michigan State Supreme Court issued a statement that custody and parenting time orders remain in effect and “[o]nly a new court order can change that. Parents should continue to follow their court orders.”
On March 26, 2020 members of the family bar, including judges and referees, participated on a webinar on this issue as we navigate through unique and new territory. The consensus seemed to be that absent a very strong fact-based scenario, parents must follow their current parenting time orders. It does not appear to be enough that the custodial parent is not aware of the contact of the non-custodial parent with others or the contacts those members of the non-custodial parent’s household make with other people. It does not appear to be enough that the non-custodial parent is a first responder and therefore naturally more at risk than those parents who are homebound. It is presumed that those first responders are taking the necessary precautions and protocols.
There are cases, however, where it may be that by granting parenting time you are putting your child in serious risk or harm. For example, if the child must fly to get to parenting time and has a high risk condition, such as being diabetic or having an auto-immune disease. Although most courts are accepting emergency motions, they have limitations on access to the courthouse and limitations on when they can hear the motion. Furthermore, although they can hold the hearing by telephone and/or by videoconference, they must adhere to the court rules which require that the hearing be recorded. If that is not a possibility, then you may be left without an avenue to appropriately have your order modified, if warranted.
The issue will likely be heard, whether it is before the scheduled parenting time or after when the non-custodial parent files a contempt motion or a motion for make-up parenting time. All parents should attempt to work together to resolve these issues. If the custodial parent has concerns, contact the other parent and offer make-up parenting time and frequent Skype or Facetime. If that does not work and you believe a motion is necessary, contact an attorney and ask whether an emergency motion, or a motion that can provide relief without a hearing is appropriate. Do all you can to appear that you made the most effort in this difficult situation.