Now that the Governor of Illinois has issued a Shelter in Place Order, what is the impact of the order on Visitation and Parenting Time exchanges in DuPage County and beyond?
There are two emerging positions to consider how custody agreements are impacted by the Executive Order to Shelter in Place. Some feel the child stays with the parent currently in possession of the child when the Shelter in Place Order went into effect. Others feel that travel for the purpose of complying with a parenting time order is essential travel and thus parenting time and visitation exchanges shall still occur. Below we discuss both positions.
Parent with Possession During Shelter in Place Order
Things to consider when supporting the position that the parent with possession of the child during the Shelter in Place Order keep the child:
1. Is there a valid Visitation, Custody, or Parenting Time Order entered by the Court?
2. Does the Visitation, Custody, or Parenting Time Order contain provisions for first right of refusal or how to care for a child while a parent or child is sick?
3. Does the Visitation, Custody, or Parenting Time Order contain provisions for a schedule for FaceTime or telephone communication with a child?
4. Has either the parent or child been exposed to anyone that might have been exposed to the Coronavirus, COVID-19, or live with a family member that is high risk for becoming infected (such as age or existing conditions)?
5. Does your town or state have an explicit rule for parenting time exchanges in the Shelter in Place proclamation or order?
No one wants the exchange of children to expose either the child or adult to the Coronavirus or COVID-19. If the order provides sufficient provisions to allow for a child to remain connected with the other parent, and the other parent lives with a family member or could have been exposed to COVID-19 and must self-isolate, it would be best to rely on the provisions of how to care for a child when the parent or child is sick or the first right of refusal to keep both children and parents safe. If however, there is minimal risk to the child and parent, and the Shelter in Place order provides a provision that visitation exchanges are essential travel, then parenting time as last ordered by the court should be followed.
If you do not have any specific provisions to your Visitation, Custody, or Parenting Agreement, we can help you via virtual mediation, parenting coordination, collaborative divorce services, or prepare your case for when the DuPage County Divorce Courthouse resumes regular operations.
Visitation Exchanges are Necessary Travel
Things to consider when supporting the provision that visitation exchanges are necessary travel:
1. Reliance on the explicit order of Governor Pritzker's Executive Order states certain essential activities are permitted and in para 5 (e): "To take care of others. To care for a family member, friend, or pet in another household, and to transport family members, friends, or pets as allowed by this Executive Order.
2. Reliance on Governor Pritzker's Executive Order, paragraph 14 (e): "Essential Travel. Travel required by law enforcement or court order, including to transport children pursuant to a custody agreement."
Either provision allows for the interpretation that children can be exchanged for parenting time per a custody agreement or court order. It would be extremely helpful that you have a custody order signed by the Judge but the language also can be interpreted to seem that oral agreements to transport children to another household would be permitted. To exercise an abundance of caution, you must consider the same issues as discussed above such as: is the child ill, is a parent ill, is a household able to receive a child and risk the exposure for both child and adult? Exchanges should only occur when the child and household is safe.
If you need a custody order or agreement, we can help you draft a custody agreement so that it can be entered by the court once the courthouse resumes regular operations. It would also provide you with a signed agreement should our shelter in place order be modified such that our whereabouts are being regulated and questioned. Contact us today to start virtual mediation or remote appointments via Zoom, FaceTime, or Go To Meeting so you are prepared for any changes ahead.
Adherence to Both Illinois Executive Order to Shelter in Place and a Custody Agreement
In the end, parents need to exercise caution, reasonableness, and adherence to both the Illinois Executive Order to Shelter in Place and their custody agreement, whether oral or written. The best course of action during challenging times is to reduce any oral agreement or custom to writing so that the entire family is on the same page. We are here to help modify, revise, or draft a custody agreement that provides safety for the entire family.
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