Lawyers get asked this all the time. It is a good question. In Washington, Governor Inslee has again proclaimed various rules and guidelines, and parents who exchange children are reacting. Here is the general, correct answer in Washington is four words: “follow your parenting plan.” Seems simple enough, right? Well, it actually depends on exact circumstances. We start with the fact that a parenting plan is the “law”, it is a court order. It is hard to make an excuse for violating the law or a court order. Now, some may say that there is an emergency or even a justification for the health and safety of others to ignore the “law” (the court’s order), but they are wrong. Also, generally, Governor Inslee’s various proclamations about staying home, staying safe, include a clause that clarifies what parents are supposed to do with private parenting plans; and that clarification is that parents must still follow their private parenting plans.
What about parents who do not have a court order and only a verbal agreement as to visitation and residential schedule? These are tougher cases because there is no enforcement (“no teeth” as they say) available for those that have not formalized a residential visitation schedule into a court order. I have advised many parents to come up with an agreed solution that is best for everyone (good luck on that!). Many report back that they tried, diligently and in good faith, using a reasonable approach, but often claim that the other parent is not being cooperative. That certainly can happen and you should consult a lawyer on the best way to communicate in those situations because your approach will be used in court, eventually (whether a text, email, phone call, or your actions). So, even if you think you are justified, or that you are doing the right thing, your behavior and your style of communication can go a long ways in court to either helping or hurting your position.
So, I have also have heard a lot of parents, usually the jerk (or less friendly parent) trying to change the parenting plan claiming it is to avoid spreading covid-19, so that particular parent has decided on his/her own to keep the kids from the other parent. Or in other cases, a parent rejects the kids from coming over due to covid-19, saying, “you have exposed our kids to covid-19 risks, you keep them at your house for 14 days.” This might be seen as a welcomed vacation to one parent and a burden of extra care for another; or, some parents relish the idea of having an extra 14 straight days, and so these end up working out depending on some dynamics. But, when the dust settles, these are incorrect answers too. If you agree on modifications like this, then great. Get it in writing (confirming text or email is preferred). Otherwise, go back to the four words mentioned : “follow your parenting plan.”
One case this week, during November, 2020, we got a call from the Father, who is a nice guy and was worried about possibly spreading Covid-19 because he and their kid “might have been exposed”, so they are waiting for test results, but it is mom’s time. Mom does not want to wait for the results and she insists on exchange/return of the child now. What does Dad do? Well, as long as he explained the risks to mom, then it is up to mom to take or reschedule. We advised him to deliver the child as normal, take precautions, wear masks, and put all of the facts and options in writing. I did write for him a draft idea in the 3rd person (ghost writing) as one last ditch effort, “Dear _____ [Mom]: I am worried about the accidental exposure for Johnny and me, we both got tested today and should have the results back within twenty-four (24) hours, which I know cuts into your time. I can offer to extend those twenty-four (24) hours to the end of your weekend to make up for it, if you want. Or, I am open to any other ideas. You have told me that you would rather just follow the parenting plan and I understand.”
Sometimes, the only way to really solve this problem is to leave the lawyers and the courts out of it if you can. Friendly, reasonable communication can be accomplished. As a lawyer, I don’t see these cases very often, but I know that they are out there. I recommend to my clients who are parents that they work it out, first, without me. “Lawyering-up” just adds fuel to the fire, sometimes. But, a lawyer behind the scenes can be worth more than one might think. For example, parent A can say, “why don’t you keep little johnny for a few days to make sure there are no further symptoms and no spread, get the test results back and share with me, and then perhaps we can make up the 2 days later. Okay?” Parent B says, “that sounds like a good plan.” I often “ghost write” for my clients to make sure when the sauce hits the fan and we are in court, my client’s communications are friendly, reasonable, and likely puts us one step ahead in court when arguing. I rarely meet these Parent A and Parent B types.
Again, if you have a question about your residential plan, visitation schedule, custody, parenting plan, and covid-19 issues, call Van Siclen, Stocks & Firkins, we can help.