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What to Do If Your Co-Parent Isn’t Having Your Child Wear a Mask

Ben Floyd

My co-parent is not putting masks on my child(ren), when taking them out in public during the COVID-19 pandemic, what should I do?

If you are reading this, like most parents, you are concerned about your child’s safety amidst this global pandemic. You are not alone and you have a right to be concerned about your child’s safety.

The U.S. Centers for Disease Control recommends that everyone wear cloth face coverings (masks) when they go out in public. In Colorado, Governor Polis has also encouraged everyone to wear masks when they go out in public, and some cities may even require it.

If you are in a dispute with your co-parent because s/he does not put masks on your children before going out in public, there is some information you may wish to consider.

Communication

First, an important thing to remember is that your judicial officer will likely want to see you have tried to work out this issue with your co-parent before pursuing legal action. Communication is key.

If you have not tried communicating with your co-parent before pursuing legal action, you could face the risk of being sanctioned by the Court or having fees and costs assessed against you. Generally, legal action is a last resort.

Best Interests of the Child

In determining what parenting time should be, Colorado courts consider C.R.S. § 14-10-124 and the best interests of the child factors located therein. You should consider documenting all communications with your co-parent regarding the mask usage.

It is possible that by maintaining a clear documented record of the instances of your co-parent’s behavior, you could obtain evidence that may be able to help you or your attorney argue that your co-parent is not acting in the best interests of the child. This could help persuade the Court as to why the Court should adopt your proposed parenting plan or modification to a parenting plan. Whether the masks dilemma is a basis to modify a parenting plan, in and of itself, will likely depend on your specific situation and must be assessed on a case-by-case basis.

Allocation of Decision-Making Responsibility

Similarly, the Court may consider this information and communications when allocating the responsibility to make major decisions for your child(ren). Having a clear record of these communications may help persuade your judicial officer to issue an order granting your proposed allocation of Decision-Making Responsibility.

Physical Endangerment

Pursuant to C.R.S. § 14-10-129(4), Colorado Courts also have the authority to severely limit one parent’s parenting time, if the Court finds that parent’s behavior places the child in imminent physical danger due to the exercise of parenting time or contact by the parent. This provision can be exercised regardless of whether your case is pre-decree or post-decree. However, this is an extreme remedy and is not typically favored by judicial officers, due to each parent’s competing Constitutional Rights. A parent should strongly consider the level of risk the co-parent has exposed to child to. It is likely that your co-parent’s behavior would have to place the child at high risk for the exercise of this provision to be successful. This must be assessed on a case-by-case basis.

For example, consider whether your co-parent knowingly and voluntarily exposed your child to a person infected with the COVID-19 virus without a mask. You could also consider the frequency, duration, and locations at which your co-parent has taken the child(ren) in public during this pandemic, without masks. It may also be relevant as to whether your co-parent’s behaviors comply with pre-existing health, safety, and legal guidelines, issued by the relevant entity.

Who is allocated Decision-Making Responsibility?

If you have temporary orders or a parenting plan, you likely have a determination of who has the responsibility to make medical decisions on behalf of your children.

At this time, there is little to no guidance on whether the decision to wear masks is a major medical decision that would require the exercise of the allocated Decision-Making Responsibility. If you have been allocated Decision-Making Responsibility for medical decisions, you may be able to exercise this responsibility to require the child(ren) wear masks.

Judicial Discretion

Additionally, you should consider that every judicial officer is different and there are no guarantees that one Court will rule the same as another Court, even in the same jurisdiction. Judicial officers have a wide range of discretion with issuing Orders dealing with parenting time. As such, there are no guarantees that something that happened in a friend, or loved one’s case, will happen in yours.

As always, conferring with an attorney before pursuing legal action could help minimize risks to yourself and maximize your chances of successfully protecting your children. The Harris Law Firm is available to help if you have a potential family law matter anywhere in Colorado. Contact us to speak with an attorney.

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