Taking care of your child during a pandemic is difficult enough without the added factor of co-parenting with your ex-spouse. Added to this stress is the need to become your child’s teacher. 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 your child 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 closing all non-essential businesses effective on March 27, 2020. The Governor accompanied the order by stating “We can’t stress this enough - you should stay at your house unless absolutely necessary…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.” The Order is 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.
Do social distancing requirements override a Court Order?
Likely, no. It is challenging to create an effective social distancing plan for children whose 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 social distancing requirements alone are not an emergency that justifies changes in parenting plans. Disobeying a court order or withholding visitation during the pandemic may therefore result in a finding of contempt of court or sanctions, including attorneys’ fees.
If you have concerns about the health, welfare, and safety of your child, you should try communicating with your ex-spouse regarding arrangements to reduce risks to your child. If this avenue does not work, you should seek guidance from an 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 outlines a few exceptions, including the following:
- Requests for orders of protection for domestic violence under RSA 173-B, stalking under RSA 633:3-a, juvenile abuse under RSA 169-C:7-a, and hearings on such orders.
- Requests for child-related emergency orders in divorce and 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.
- Requests by the Division for Children, Youth and Families for emergency orders and for 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); 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. In such a situation, a judge would likely find that it is in the child’s best interests to modify visits for a limited period of time, and schedule make-up visits for a later date.
In summary, parents should continue to abide by their parenting plans and adhere to all of the recommended guidelines and health practices, and should 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 where exposure of your spouse to the virus is confirmed.