“My ex is refusing to exchange our child because of ‘safety concerns’ related to COVID-19, what do I do? Can my ex withhold our child without a Court Order??”
Hands down, this has been the most-asked question I have received from pro se litigants as COVID-19 protocols continue to change, sometimes creating more questions than answers.
The short answer is you should NEVER violate a Court Order without (1) first attempting to reach a mutually agreeable solution with the other parent; and (2) if those efforts are unsuccessful, filing a Motion with the Court asking for emergency/temporary relief.
The reality, however, is that many parents are taking matters into their own hands; making unilateral decisions about withholding children from the other parent during the pandemic; and opting to ask for forgiveness from the Court later (as opposed to asking for permission first). Smart move? In my opinion, definitely not.
The other reality, which further muddies the waters in our current climate, is that some parents aren’t concerned about their children potentially contracting COVID-19 whatsoever, and are simply using the pandemic as a disingenuous justification to deprive the other parent of their court-ordered custodial time; to escalate conflict with the other parent; and to exert control over the other parent. Problematic? Big time.
WHAT ARE ATTORNEYS TELLING CLIENTS TO DO?
Please keep in mind that I am not an attorney and my opinions are just that ... opinions. However, I can tell you that the family law attorneys I work with in my downtown Las Vegas office are advising clients to follow their custodial Court Orders to the letter and that if a legitimate concern arises (like confirmed COVID-19 exposure in a household), then it is time to immediately open the lines of communication with the opposing party/attorney and, if needed, file a Motion with the Court.
Stacy Rocheleau, Esq., the founder and managing partner of Right Lawyers in Las Vegas, recently shared some great information on the topic of COVID-19 and child custody exchanges on Right Lawyers’ social media platforms. “Does a directive from our governor give a parent the authority to stop child custody exchanges? The simple answer is, no,” says Rocheleau. Check out the complete article from Right Lawyers HERE.
(Note: Pro Se PROS is not affiliated with Right Lawyers in any way; I bring them up because their website provides a wealth of great information and is worth a look).
HOW ARE JUDGES HANDLING THESE SCENARIOS
So, how are Family Court Judges handling COVID-based disputes between parents? As always, it depends on your particular Judge and the specific facts surrounding your case. I can give you a few examples, however, of scenarios I have seen play out in court recently.
Last week, a Clark County Family Court Judge entered orders in a case mandating that both parents follow all CDC protocols; that Dad cannot take his daughter to any restaurants (that are now starting to reopen in Las Vegas) per Mom’s request; and that the parties’ minor child must always have a mask and gloves on when leaving either parent’s home. Personally, I hate these types of Orders because the underlying assumption is that fit parents somehow aren’t capable of making sound parenting decisions on their own. Others vehemently disagree with me.
Last month, a different Clark County Family Court Judge entered orders temporarily suspending Dad’s contact with his boys – entirely -- because several employees at Dad’s workplace (the new Raiders stadium in Las Vegas) had recently tested positive for COVID-19. The Court ordered that Dad’s contact would remain suspended until he self-quarantined for 14-days or until Governor Sisolak lifted current restrictions. Dad’s argument was that he is routinely tested (and has been negative); that he practices strict social distancing at work; and that, if he quit his job, he would no longer be able to pay child support and would lose health insurance for his boys. Tough call, but this Judge clearly felt it necessary to err on the side of caution (and this Judge is not alone, in that regard).
In another recent case, Mom unilaterally withheld the kids and Dad filed an immediate Motion to Enforce. Dad was not only awarded make-up time, but Mom was held in contempt and sanctioned monetarily. In this particular case, Mom had withheld before and the Court deemed it to be an ongoing pattern of alienating behavior.
WHAT TO DO IF YOU’RE THINKING ABOUT WITHHOLDING
What should you do if you’re thinking about withholding your child(ren) from the other parent due to COVID-19 concerns? First, use your common sense. Reach out to the other parent and TALK about your concerns. Respectful co-parenting communication is always important; but during a pandemic, it’s VITAL.
Second, be reasonable. At a minimum, if the Court has to get involved, the parent that has lost custodial time with the child(ren) will likely get compensatory time at some point. Offer make-up time to your co-parent up-front; show them that your reasons to withhold are honorable; and ask if they would be willing to reach a temporary agreement with you. Doing so will allow you to stay out of Court (a scenario that benefits all involved). If you HAVE to file a Motion, attorneys in my office are advising clients to do it proactively (don’t wait for the other party to file) and ask the Court to hear your Motion as soon as possible.
WHAT TO DO IF YOUR EX IS CURRENTLY WITHHOLDING
In the same spirit mentioned above, if your ex is currently withholding your child(ren) from you, TALK to them and try to understand where they’re coming from. Is your ex truly scared about the current pandemic or is your ex simply looking to add another weapon to their arsenal of alienation? If you are left with no other choice but to seek the intervention of the Court, then file a Motion and consider asking the Court to:
(1) Enforce your controlling custodial orders;
(2) Issue an “Order to Show Cause” on the opposing party;
(3) Enter a subsequent finding of contempt against the opposing party;
(4) Award compensatory/make-up time for the days missed; and,
(5) Award attorney’s fees, should you need to retain counsel.
How do you file a Motion? Three options. You can do it on-your-own with the help of the Clark County Family Court Self-Help Center (which is an excellent resource); you can use a service like mine (Pro Se PROS); or you can contact a local attorney for assistance.
Clark County Family Court Self-Help Center:
Pro Se Pros
Best of luck and stay strong!
Mark DiCIero is the owner and founder of Pro Se PROS, LLC. You can contact Mark directly at 702.743.3338 or at firstname.lastname@example.org.