March 28, 2020

I have received several inquires from current clients, past clients, friends and friends of friends regarding my opinions as to how the COVID-19 Stay-at-Home Order should, or shouldn’t, affect current parenting time schedules and child support payments.

Nick Cutrera

Every case is different, and this informational article is not meant to be taken as legal advice or to replace legal advice from your attorney. However, it is meant to give you some things to consider before making your determination as to whether you should continue to abide by the currently ordered parenting time schedule and child support obligations.

I believe that every parent should consider the following in making her or his decision as to whether to abide by the current parenting time order:

  1. This is an unprecedented time in our history. Thus, any attorney’s opinion as to how a judge would react to a parent unilaterally suspending the regular parenting time schedule is speculation. It has been my experience that Courts expect their orders to be followed. I believe that it is almost always in a child’s best interests that he or she has continued meaningful, frequent, and substantial contact with both parents. This is especially true during times of crisis. The stay-at-home order is changing a lot in the child’s world. It is eliminating their in-person interactions with teachers, classmates, neighbors, friends, and other relatives. Why also eliminate the child’s contact with his or her other parent when so much has already been lost? The child has two homes when the parents are separated- mom’s house and dad’s house. Mom or dad unilaterally deciding that her or his home will be the home where the child will reside uninterrupted throughout the duration of a stay at home order is a serious decision and one that I would not recommend to a parent unless her or she has substantial evidence that the decision is essential for the child’s physical health. For example, if one parent has demonstrably asserted that he or she will not be abiding by the order because COVID-19 is not real, not a serious health condition, or that the stay at home order is an impermissible restriction on his or her freedom, then it may be necessary for the other parent to keep the child. But, in most cases, I would recommend that both parents follow the terms of their current parenting time order.
  2. Communicate with the other parent. If you have specific reasons why you feel it may be necessary to keep the child throughout the duration of the stay-at-home order (or why you believe the other parent should keep the child throughout its duration), communicate your reasons to your co-parent. He or she may agree with you. Any discussion regarding temporarily depriving a parent of his or her parenting time or visitation should include a discussion as to how the lost parenting time will be made up after a return to normalcy. I know that in high conflict situations, one parent often feels superior to the other in terms of caring for their child. My experience is that sometimes these feelings are supported by facts and that sometimes they aren’t, and that they are a result of personal animosity created toward the other parent as a result of the failed relationship. Either way, this one thing is certain: Missouri law directs its courts to consider which parent is more likely to give the other parent substantial and meaningful contact with the child when determining custody arrangements for the child. This law applies not only to new custody orders but also to modifications of custody. So before deciding unilaterally to withhold a child from the other parent, ask yourself “Am I taking a risk that a Court will view me as unwilling to provide substantial and meaningful contact to my co-parent?” Is there a possibility that the Court will use your invocation of the Order as a pretext for depriving the other parent time with the child for other reasons?
  3. The bottom line is that in this situation, as in most parenting decisions for separated parents, is for you to do a careful self-analysis of the reasons for your decision. Is it motivated by a real concern for the child’s safety? Do you have substantial (and demonstratable) cause to believe that the other parent will negligently and/or intentionally expose the child to the coronavirus? Despite the animosity between you and your co-parent, do you believe that your co-parent cares about your child’s health and will take every precaution to protect the child during his or her parenting time? Are you confident in your decision enough that you’re willing to risk what could happen if a judge views it differently?

With respect to child support during this time, many people have asked if they should still pay child support during this crisis, even if they have lost their job or may lose their job. The child support order is a court order. Obviously, it is going to be hard to meet all your financial obligations when your income is reduced. My advice is simple- do the best that you can! If you can’t pay the full amount, pay what you can. When you prioritize what obligations you will pay and which ones you will have to defer during this crisis, I would submit to you that financial support for your child(ren) should rank higher than most of your other obligations. Again, sometimes personal animosity toward the other parent can cloud your decision making. I would urge you to set aside that personal animosity, prioritize your child support obligation, and do the best that you can. Frequently, I’ll get push back against my view with the assertion that the parent receiving the child support uses it for everything but for the benefit of their child. I have two responses for this: (1) if your spouse uses the child support for purely personal reasons, such as going out to bars and restaurants without the child, then their poor decision is on them. You should be able to rest in the fact that you are providing support for your child as the court has ordered and as is the right thing to do. If you believe there are reasons to modify your child support (or custody) based upon your spouse’s misconduct, you should meet with an attorney and explore your legal options; and (2) if your spouse is using the child support to meet her or his obligations to pay for utilities, mortgage, or rent, please remember that your child is benefitting from your child support because he or she stays at your co-parent’s house for some of the time and benefits by its maintenance and upkeep. Also, it is probably reasonable to assume that your child support payments are more likely to be used for legitimate purposes when there is financial crisis. It is likely that frivolous spending of all types is going to be reduced by almost everyone for the next several months.

I hope that you have found this information helpful. I’m sure that there are many who may disagree with my views. There may be other attorneys that disagree with me. And that’s ok- we all have a right to our opinions. But I believe that attorneys are often called “attorneys and counselors at law” for a reason- we have an obligation to counsel our clients about what we think is the right course of action and how Courts may interpret their choices.