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Kemp’s Executive Order #2, The Family Law Version

by | Apr 4, 2020 | Family Law

Governor Kemp issued a Second Executive Order last night, on April 3rd. I reviewed the more extensive First Order in my previous blog post. The April 3rd Order became necessary when family law attorneys realized that a huge visitation problem was created by the First Order.

What I have re-written here is not every word of the Second Order. There is more to it than this. But I believe that I have hit the high parts and provided some references that you can use to refer to the Second Order itself to see if it expands in any way that directly impacts you. The paragraphs in the Second Order were not numbered. It would have been helpful if they had been. I’ve added a paragraph number for easier reference.

I don’t mean for you to take my commentary as legal advice for any particular act but rather as food for thought. If you need to know something specific, we should talk.

Now, legal disclaimers aside, let’s get to the Second Executive Order.

The Second Executive Order begins with a fervent attempt to avoid creating a separation of powers problem. Apparently, Kemp was brought up short in appearing to stomp on the turf of the Judicial Branch. In the Third Whereas clause the Second Order states that the Judiciary is a separate branch of government and “shall forever remain separate and distinct; and no person discharging the duties of one [branch of government] shall at the same time exercise the functions of either of the others…” (Citing the Georgia Constitution).

The Fourth Whereas clause acknowledges that the Judiciary has independent authority to declare a state of emergency.

COMMENTARY: Indeed, we had such a declaration from the Judicial Branch a few weeks ago.

The Fifth Whereas clause allows that Powers not expressly suspended by Executive Order are still in effect, which includes decrees from the Judicial Branch.

COMMENTARY: Here, Kemp wants to have his cake and eat it too. He allows that the Judicial Branch is a separate and equal branch of government but also implies that he could have suspended decrees from the Judicial Branch if he needed to. I would love to see this argument played out because it needs to be resolved. I can envision scenarios where we need the Executive Branch to hold powers sufficient to protect the country in times of crisis, judicial decrees on individual cases be damned. This may be one of those times. Any such “Marshal Law” Order could be reviewed by the Judicial Branch under constitutional scrutiny as has been long established.

Orders 2, ¶1 expresses that no provision of the prior Executive Order shall limit any judicial order, including custodial arrangements, nor shall anyone use that Executive Order as a defense to any custodial arrangement by court order.

COMMENTARY: This is the reason for the second Executive Order. “Necessary Travel” did not include traveling to exchange children for visitation. “Essential Services,” as covered below, did not allow for exchanging children for visitation. Children were suddenly in limbo over whether they would visit with their other parent this weekend or how Spring Break was going to play out. This Second Order certainly resolves that. What it doesn’t resolve is whether this Amendment comports with the reasoning of the First Order; whether this Amendment is in the best interests of the children and society’s medical health.

Orders 2, ¶2 states that “engaging in activities essential for the health and safety of family or household members…” as defined under “Essential Services,” now also includes “the transport, visitation, regular care of family members and persons dependent on the services of others, and similar actions that ensure the welfare and best interests of persons in the State of Georgia, specifically including the elderly, children and disabled populations.”

COMMENTARY: Transporting for visitation would be necessary to allow for visitation. I guess the rest of the provision has to do with caring for the elderly and disabled. I wrote earlier about home health care workers. This provision probably expands that to include family members who travel to an elderly person’s home to look after them. That would no longer be prohibited.

Orders 2, ¶4 now expresses that further guidance regarding the meaning of “Essential Services” may be provided through other communications, including social media, without any further Executive Orders.

COMMENTARY: So don’t expect any further Executive Orders! Kemp will post his commentary on Facebook, or something.

That’s it. Visitation is allowed. Don’t know if that’s the best idea but it is the law of the land. So have at.

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-Michael Manely