Ohio Gov. Mike DeWine issued Executive Order 2020-01D March 9 declaring a state of emergency in Ohio due to the novel coronavirus. The governor and his cabinet have issued numerous additional executive orders since that time, all aimed at stemming the spread of the virus in the state and providing some measure of financial relief to Ohio citizens and businesses. The most impactful of these, of course, is the March 22 stay-at-home order signed by Dr. Amy Acton, director of the Ohio Department of Health.
The stay-at-home order specifically included as “essential” – and therefore, permitted by the order – any travel “to transport children pursuant to a custody agreement.” That was followed by orders from many local courts making it abundantly clear that parenting time is to continue in spite of the pandemic.
Should such orders have been necessary? While one always hopes divorced or never married co-parents can work together intelligently and cooperatively to navigate these situations, unsurprisingly the questions came quickly to family law practitioners. For the average set of parents, the expectation has been parenting time will continue as usual. Logic would dictate that household members of each residence should and would take appropriate steps to keep household members safe, and the children could and would safely travel back and forth between them.
Of course, these orders are one-size-fits-all approaches and do not address certain facts that may make a child more “at risk” in one home versus the other. For example, what if one parent is an essential worker and the other is not? When one parent is an essential worker, but not necessarily on the front lines of the pandemic, such as a food worker, a lawyer, a construction worker or a postal carrier, arguably they are more at risk of contracting COVID-19 because they are out of their homes and in the community. That said, we would still fully anticipate parenting time would continue as per usual, and the essential worker would follow all appropriate guidelines issued by all levels of government to minimize the risk. That is, we assume that everyone will exercise common sense.
What if one parent is squarely on the front line? Maybe they work directly in an intensive care unit with patients who have tested positive for the virus, for example. Does that present an unreasonable risk to a child? Obviously some front-line workers have made the decision to self-quarantine from other family members under the mantra of “better safe than sorry.”
However, that is merely an elective decision. Although outliers certainly can be found in the news, it is not clear that courts would support a unilateral decision to withhold a child from a parent on the front lines, and the threshold question is going to be whether or not everything reasonable is being done by that front-line worker to minimize the risk of transmission.
Again, this is really a question of taking common sense steps, such as proper handling of personal protective equipment, isolating and appropriately cleaning clothing, and the like.
What if someone is taking inappropriate risks? Well, “inappropriate” is really in the eye of the beholder. That said, if the risks are egregious, it may be prudent and necessary to formally seek to postpone parenting time and to look to alternatives such as phone electronic “visits” on a temporary basis.
And, if the parenting time is to be exercised in a geographically distant location, the primary question becomes whether or not the children can be safely transported – ideally not involving air travel – to and from the parenting time.
In these unusual and challenging times, there is no substitute for parental common sense. Hopefully, both parents will want to do everything within their respective sphere of control to minimize the risk to their children. And, parents must ultimately have some level of faith that their co-parent will behave similarly.
Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.