Many families are in turmoil as they struggle with getting their children back into the educational process. In households where the parents have some type of shared parenting time schedule, there are unique challenges, especially if parents cannot agree on which educational option best suits their children. One parent may be available during the daytime and have the skills necessary to monitor and assist their children on the computer for online learning while the other parent has to work full-time during the day and may not be skilled (or as skilled) at encouraging the children to do online learning.
Some families have very young children, beginning first or second grade or just starting kindergarten. In a shared custody situation, what happens when the parents can’t agree on an educational option?
So far, Arizona courts have put together guidelines to help parents make choices about the safety of their children during thepandemic. At least for now, those guidelines primarily address how to handle things like exchanges, changes to parenting time if one household is stricken by Covid, and instructions about access to the courts if there is an important disagreement between the parents.
Here are some important points about the court guidelines.
The guidelines encourage temporary agreements: it is important for parents to attempt to reach their own agreements whenthey have disputes related to Covid. It is not easy to get a quick court hearing and frankly, the court does not have any specialized expertise to solve many problems that arise from issues related to Covid. Anyone familiar with the news understands that even the smartest scientists and most powerful politicians differ in how to approach the pandemic. If you and the other parent do reach an agreement, there is something important to know. Our family law rules have a rule about agreements (rule 69 of the Arizona Rules of Family Law Procedure). This rule provides that if both parents reach an agreement in writing and sign the agreement, it has the same force as an order of the court. Therefore, parents who have reached an agreement should write out that agreement in clear language that is specific as to its terms and most importantly, states how long the agreement is in effect. If the agreement is for a month, it can always be renewed. With things
as uncertain as they are, I recommend that most of these agreements be relatively short-term since things are changing so rapidly with the virus as well as the government’s approach to it. A typical agreement might state that for the next 30 days, the parenting time schedule will change so that one parent has the children during the week (because they are available to facilitate online school) and the other parent will have weekend time. Another typical agreement might state that the children will stay with one parent for a period of 14 days because members of the household of the other parent have someone with Covid or that has been exposed to the virus.
The guidelines mandate, in most instances, that parents comply with parenting time orders. The guidelines of the court are very clear. Parents cannot use self-help and deny the other parent their court ordered time with the children unless they
have an agreement or a court order. In most instances, parents must comply with any existing parenting time orders unless they agree otherwise, or until the orders are modified.
Sometimes, a situation might be so serious that a parent chooses to disobey a court order and risk being in contempt of court. I am not in any way advocating that parents routinely deny the other parent their time but there may be emergency circumstances where a parent may choose to withhold the children from the other parent without a court order. If a parent chooses to do this, they should also file a petition seeking relief from the court. They also are at risk of being in contempt if they cannot prove that they had good cause to deny the other parent their parenting time. Also, the other parent may use the police to force an exchange. Before you go this route, I think it would be very important for you to consult with an attorney.
A parent who refuses without good cause to comply with a parenting time order is subject to legal penalties, which may include being held in contempt of court, fines, and sanctions.
A parent currently exercising parenting time/physical custody who is not entitled to it under the court-ordered parenting schedule must immediately return the children to the other parent.
The Court reminds parents that “[a]n order for sole legal decision-making does not allow the parent designated as sole legal decision-maker to alter unilaterally a court-ordered parenting time plan.” A.R.S. § 25-403.01(C). This means that even if you have sole legal decision-making you cannot change the day-to-day schedule of parenting time without a court order.
The same applies to a parent who has final decision-making authority under a legal decision-making order.
Self-help is not an acceptable course of action. If both parents cannot agree on a modified parenting time plan and one of you believes an adjustment is necessary, you may consider filing a request for temporary modification with the Court under Rule 48, ARFLP. A rule 48 Motion is somewhat complicated as you have to file several different documents and you have to allege and prove immediate and irreparable harm. If you file this type of motion, the court usually sets a hearing within 10 days. Again, you should consult a lawyer about this process.
The guidelines remind parents that if there are no orders in place and unless otherwise ordered, legal parents are entitled to co-equal, but not exclusive, physical custody of children, and A.R.S. §13-1302(A)(2) forbids “either parent from hiding a child from the other.”
Third-party visitation orders such as grandparent visitation orders also remain in effect and should be complied with unless modified by the court consistent with Covid guidelines. All parties are encouraged to confer before seeking court intervention, to achieve the best interest of the child.
Parents are considered fit: the guidelines state the obvious, that unless otherwise ordered by the Court, parents are considered fit to care for their children and make decisions regarding day-to-day aspects of parenting while children are in their care during the Covid pandemic. This day-to-day care includes following federal, state, and local directives regarding masks, social distancing and other safety-related measures (such as frequent handwashing).
The court guidelines make clear that the Court remains available to hear urgent matters, including entering new orders in emergency situations. However, the Court guidelines also strongly encourages parents to first attempt to work together to resolve any issues.
Phone contact: If one parent has to self-quarantine and cannot see the children, both parents should ensure that there is regular phone contact or video contact between the parent and the child.
An alternative location for the exchange, where fewer people congregate or touch public objects may be necessary.
If an exchange location is closed, the parents should choose an alternative location nearby that remains open.
For ongoing safety considerations in high conflict cases, exchanges should occur in a neutral setting such as at a fire or police station.
Long-distance travel: The guidelines also talk about air travel. If the children’s exchange under the parenting plan includes long distance or air travel, the guidelines encourage parents to review the CDC travel guidelines and discuss whether ground transportation for the exchange is preferable or possible. If the parenting plan includes long distance parenting time to be exercised at a location that is disproportionately impacted by the COVID-19 virus, the guidelines encourage parents to communicate and try to determine alternative options. If the parents cannot agree, they must follow the order unless they get a court order.
Supervised exchanges: For supervised exchanges, parents should continue to follow the parenting plan and use the designated exchange agency or supervisor if they are available. If that is not possible, parents should work collaboratively to find an alternative exchange agency or supervisor, which can include an agreed-upon friend or family member.
In summary, Covid issues are not going to go away anytime soon. The judges have had several seminars explaining the latest developments from the courts. This is a time where it is important that you consult with an experienced lawyer if you have Covid related issues regarding your children.
Contact our office today to schedule a consultation and discuss how we can be a resource and advocate for you during these challenging times.