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Is There a Change in the Custodial Environment Due to Special Circumstances from COVID-19?

April 6, 2020
Family Law Advisory

Father playing with childIn this unprecedented time, with so many conflicting messages, many parents with custodial orders in place are not sure how to best comply with existing parenting time schedules. In response to Governor Whitmer’s stay-in-place order, No. 2020-21, some people have voluntarily modified their custody and parenting time orders for various reasons, e.g., distance between homes is too far, making exchanges unsafe; a member of someone’s household is a first responder or frontline person and both parents agree not to take the risk[1]; a member of someone’s household is more vulnerable to the virus because of health issues; or someone has tested positive for the coronavirus. Others are acting unilaterally and violating court orders, citing their children's health as a justification, still others are hoping the court will make the call. However, most courts are effectively closed for routine matters, and some courts are even ill-equipped to handle emergencies. Therefore, the best – and only – option may be to reach common sense agreements with the other parent in the best interests of your children. 

Legitimate concerns for any parents who make COVID-related parenting time adjustments are, 1) how long such a modification will last, and 2) will they be able to return to the regular schedule when this situation improves? It is possible that parents could go weeks, possibly months, without physically being in their children' presence. Will the other parent use a huge break from the schedule as a reason to later file for modification of parenting time? 

For now, most judges are favoring compliance with current parenting time schedules and are supportive of providing make-up parenting time for parents who are not having parenting time. However, as missed days turn into weeks and possibly months, make-up parenting time may not be realistic in every case. And, will a long gap in parenting time alter the established custodial environment? This legal concept considers where the children, over an appreciable period of time, tend to look for their necessities in life – food, love, comfort, nurturing. Evaluating the established custodial environment is the starting point for every parenting time and custody determination in court. If one parent has the children physically 100 percent of the time for a long period of time, will the children start looking to that parent for such necessities and change the established custodial environment? Likely not. Parents can work together to send the appropriate message to children so they can maintain a connection with a non-custodial parent.

Parents who are modifying their parenting time schedules can take steps to maintain/preserve the relationship between the children and the other parent. First, parents should let children know that the stay-in-place order is temporary, and any changes to the parenting time schedule are for safety or health reasons. Second, the non-custodial parent should have generous time over Skype, Zoom, FaceTime or other such mediums and should be able to spend time with the children outside at a distance if possible. The parents should be creative with the children to facilitate a continuing close relationship with the children and the non-custodial parent.

Although courts have ruled that temporary orders and long gaps can change an established custodial environment in certain cases, these are often cases where parents are unilaterally keeping children from the other parent or otherwise engaged in protracted battles. Modifications due to COVID-19 circumstances are unique, and courts are likely to take that into consideration if faced with motions once the stay-in-place order is lifted.

If you have questions or concerns about how to best manage your current parenting time order, Varnum offices are open remotely, and family law attorneys are available to discuss your specific circumstances.

[1] This, in and of itself, is not a reason to withhold parenting time in violation of the order.

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