It’s 5:45 p.m. and you’re on your way to your designated meeting spot to meet you ex to pick up your child for your visitation weekend. You arrive promptly for a 6:00 p.m. exchange and wait for your ex to show up. 10 minutes pass. Nothing. 15 more minutes pass. Silence.
You text your ex to see what’s the hold up. Five minutes later you get a response stating that they won’t be showing up. In the new age of “shelter in place” your ex informs you that that’s exactly what they intend on doing, sheltering in place. Frustrated, you head back home.
This is the third visit in a row that you have been denied visitation for one reason or another. You understand the health concerns amidst Covid-19 but does that mean you once again have to forego visitation? What exactly are your remedies?
Governor Kemp issued an Executive Order on April 2, 2019 mandating that all Georgia residents shelter in place within their home or residence unless they are:
1) Conducting or participating in Essential Services;
2) Performing Necessary Travel;
3) Are engaged in the performance of, or travel to and from the performance of Minimum Basic Operations for a business, establishment, corporation, non-profit corporation, or organization not classified as Critical Infrastructure; or
4) Are a part of the workforce for Critical Infrastructure and are actively engaged in the performance of, or travel to and from, their respective employment.
In this Executive Order, the Governor clarified that Essential Services are:
1) Obtaining necessary supplies and services for family or household members, such as food and supplies for household consumption and use, medical supplies or medication, supplies and equipment needed to work from home, and products needed to maintain safety, sanitation, and essential maintenance of the home or residence. Preference should be given to online ordering, home delivery, and curbside pick-up services wherever possible as opposed to in-store shopping.
2) Engaging in activities essential for the health and safety of family or household members, such as seeking medical, behavioral health, or emergency services.
3) Engaging in outdoor exercise activities so long as a minimum distance of six feet is maintained during such activities between all persons who are not occupants of the same household or residence.
I know you’re probably thinking to yourself “well I don’t see anything about visitation with my child.” And you would be correct. The dearth of guidance on how visitation should operate in current times left many courts to interpret the Executive Order as they saw fit on how visitation should operate. While many circuits have been silent, some have made it clear that Parenting Plans should continue to operate as outlines.
So what could you do if you were faced with conflicting orders between your local Superior Court’s order and the Executive Order. Ultimately, you should comply with Executive Order and shelter in place and allow the minor child to remain with whichever parent the has physical custody of the minor child on April 3, 2020 at 6 p.m.
The next day, Governor Kemp issued a clarification of the Executive Order specifically addressing visitation issues. The clarification made it clear “that no provision of Executive Order 04.02.20.01 shall limit, infringe, suspend, or supplant any judicial order, judgment, or decree, including custodial arrangements, created pursuant to the laws or constitution of this State.
“With that being said, visitations should continue as outlined in court-ordered Parenting Plans. The Executive Order cannot be used “as a defense to an action in violation of a judicial order, judgment, custodial arrangement, or decree by any court.” A parent can still be subject to contempt sanctions for withholding visitation.
So, if you are following the ping pong ball of Orders, visitation is back on.This means that under our scenario above, you should get your visitation and your ex is in the wrong. Call an all family law attorney to get started on a Contempt action so that you can, at the very least, get all the make up time back.
In this age of emergency orders and court’s all but shut down, it appears that the courts are taking the contempt filings in stride. For the most part, these issues don’t constitute an emergency such that the court will hurry up and hear the case but the court will get around to to a hearing and the mother’s excuse de jure will not hold water.
Justice will be done. And the Governor agrees!