Parental Tug-of-War and the Pandemic

Child Custody, Family Law, Mark Schondorf

by: Mark Schondorf – May 6, 2020

In a recent press conference, Illinois Governor J.B. Pritzker was asked about parents who are using the COVID-19 Stay at Home Order , or the pandemic in general, to “sidestep” custody and parenting time agreements. Certainly, parents are gravely concerned about how the Coronavirus pandemic will affect their own health, and the health of their children. Additionally, Americans are reacting quite differently to the pandemic and the various shelter-in-place orders issued, ranging from paralyzing fear to having no concerns at all.

It’s easy to see how two parents who feel differently about the pandemic can create problems following an established parenting time schedule. Perhaps one parent believes the other parent is not acting safely, including not properly following social distancing guidelines and decides, in order to protect the children, to withhold parenting time from the other party.  What are the rules? What can a parent do if they honestly feel that allowing a child to be with the other parent presents a danger? Thankfully, there is guidance available.

While the Illinois Stay at Home Order does not address family law issues, the Presiding Judge of the Domestic Relations Division of the Cook County Circuit Court, Grace Dickler, issued a variety of Administrative Orders in response to COVID-19, including General Order 2020 D 8 issued on March 19, 2020 specifically to address potential parenting time abuse. The Order unequivocally states: “Unless otherwise directed by further order of court, the parties shall continue to follow their respective parenting time schedules.” It further states that nothing in the Order prevents the parties to alter their parenting schedule by agreement, and that the parties are “strongly encouraged to act in the best interest [sic] for their children and are strongly admonished from taking acts that would imperil the physical health of any child, including unnecessary or discretionary travel.” So, all things being equal, the parenting time schedule should continue to be observed, and using the pandemic to “sidestep” a parenting time order, judgment, or agreement is not allowed. This Order only applies to Cook County, but the courts of Chicago’s collar counties have all instituted temporary orders for court operations, though not all have specifically addressed the issue of parenting time.

But what if there is an actual concern? And who is the arbiter of whether a parent is acting out of good faith to protect their children by withholding parenting time from the parent who is using the pandemic to be vindictive? Thankfully, courts are operating on a limited basis with reduced operations and[MS1]  still have judges available to hear matters on an emergency basis. As a family law practitioner, I would strongly advise clients to only seek such relief it there was a bona-fide emergency. For example, a household member diagnosed or showing symptoms of COVID-19, being immunocompromised, or a parent demonstrating an unwillingness to observe social distancing guidelines might convince a judge there is an emergency and that parenting time is not in the children’s best interests. Even still, a judge will certainly want to see some good-faith communication between the parties to formulate a plan or solution before threatening the safety and well-being of the Court and its staff in requiring an in-person hearing on what might not be a true emergency. Ultimately, a Judge will use his or her experience in what constitutes a true family emergency to determine whether a child is truly in danger, or if there is gamesmanship afoot.