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“Stay At Home” Orders and Parenting Time

Benjamin Mueller

March 2020 has been an unforgettable and historical month for all Americans. The COVID-19 Virus came into March like a Lamb and is leaving like a Lion. To combat the virus, we are all aware of “social distancing” and “essential activities.” The “Stay at Home” order issued by the Department of Public Health & Environment (DPHE) issued on March 25, 2020 brought the COVID virus to the forefront of every Coloradoan’s mind. The “Stay at Home” order made the outbreak more than an isolated ski country county (Eagle, Pitkin, Summit, Gunnison) problem, which was the DPHE’s stance on March 18, 2020, only one week before. 

Just as the health department orders are quickly ramping up, there has been an uptick in legal questions and legal conflicts for domestic relations clients surrounding the effects of the “Stay at Home” order on parenting time. 

Based upon District Court Judge’s decision immediately following the “Stay at Home” order on March 27, 2020, and corroborated by the Governor’s legal counsel Jacki Cooper Melmed’s official comments on National Public Radio on March 31, 2020, the effect of the “Stay at Home” on parenting time is as follows:

  1. Travel for parenting time exchanges is considered essential travel and is therefore not restricted by the “Stay at Home” order. In other words, parenting time is not restricted by the current “Stay at Home” order from DPHE and Court orders remain in effect.

In addition, a District Judge from Jefferson County weighed into this “Stay at Home” order’s effect on parenting time a bit further:

  1. A parent’s decision to unilaterally withhold parenting time in violation of existing court orders is a contemptuous act, with the following exceptions:
    1. If either parent or a minor child has a confirmed positive test for COVID-19, the parent may withhold parenting time from the infected parent or have parenting time withheld from them by the other parent if they are infected. If the parents cannot agree on a course of action, the parties should file a Status Report with the Court and seek the Court’s guidance;
    2. If an order from the Governor, DPHE, or from the Supreme Court of Colorado states with unequivocal language regarding the travel of the public, then parenting time may be temporarily withheld by one parent. Examples of language and orders that would supersede existing parenting time orders will include “shall not” language regarding being outside or in public or a declaration of martial law by the Governor with severe restriction of the public’s movement.

Make-up parenting time for the parent whose parenting time was withheld as a result of the above exceptions will be highly encouraged and enforced.

In conclusion, as of March 31, 2020, but for very strict exceptions stated above, a client’s existing court orders regarding parenting time remain in effect and parents should continue to follow them. Parents should follow the DPHE’s “Stay at Home” order and practice social distancing, etc., but they should not withhold parenting time from the other parent at this time.

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