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March 23 2020

Statement from the Michigan Supreme Court on Matters Concerning Children

By: Kimberly M. Large, Andrea D. Crumback, and Elizabeth K. Bransdorfer

This email is being sent to current and former Mika Meyers’ clients with family law matters that involve minor children.  We know that parents across the state and world are afraid for their children and want to do whatever they can to help keep their children safe.  The new Order from the Governor confirms that parenting time exchanges must go on as ordered. We encourage you to talk with your child/ren’s other parent and try to agree about what that means for your family.  If one household has symptoms or a confirmed case of COVID-19, and a child has not been exposed there, it makes sense to allow the child to remain in the household without the increased risk.  Consider adopting or increasing use of electronic communication, and discuss the appropriate way to assure makeup time with the other parent once the crisis has lessened or passed.  

If you and the other parent have different views on what is the best option for a child, the Michigan Supreme Court has provided the attached Statement that clearly states you should follow your Court Order.  Neither parent has the right to refuse to exchange a child for court ordered parenting time.  Even a “shelter in place” order, which has not been issued in Michigan, does not allow you or the other parent to ignore the Court Order and refuse to exchange a child. 

We have already been contacted by parents who are experiencing parenting time conflicts and some parents are refusing to exchange children for parenting time, citing fear over exposure to COVID-19.  At this time, Michigan Courts are only hearing emergency motions and enforcement of parenting time orders is not on the list of emergency matters being heard.  Therefore, our advice if you are in this situation is as follows:

  1. Try to work out something with the other parent.  Try again.
  2. Send written notice to the other parent clearly stating that the Court Order must be followed, per the Michigan Supreme Court (feel free to attach the Statement).  If you want us to help with your email or text language, reach out – we would be glad to help. 
  3. Tell the other parent, in writing, that you will show up at the designated exchange location at the time called for in your Order.  Be clear about the date, time, and place.  Then actually show up there.   Do something so you can verify you were there (buy something and keep the time-stamped receipt, take a selfie with a clock in the background, whatever works for you.)  You will need to do this for every exchange that should be the start of your parenting time.  
  4. Keep very careful notes of all conversations, try to use email where possible as that is easiest for later use as evidence at a hearing.
  5. Keep track of all of the parenting time your child misses with you.  It will be helpful if it is listed by date, whether it is weekday, weekend, or holiday time (because your makeup time is supposed to be the same type you missed with the number of hours and overnights the child missed being with you. )     
  6. Keep track of all efforts you make to be able to text, talk, video chat, etc. with your child; both those that are successful and unsuccessful. 
  7. When you do get to talk to your child, don’t bad mouth the other parent – no matter how tempting.  The child will need reassurance as much as possible that everything will be OK.  If the other parent won’t release the child and they wonder why they aren’t seeing you, tell the child that the parents disagree about what to do and that the adults will figure it out as soon as possible.  Reassure the child you love them as often as possible. 
  8. If the situation in the home where your child is while in the care of the other parent rises to the danger level of “imminent” and “significant risk of harm,” then you may want to reach out to law enforcement for a well child check (be prepared to describe the basis of your concerns in detail and expect a skeptical reaction – law enforcement is not there to enforce parenting time orders) or, in situations where you can substantiate imminent or significant risk of harm, a call to Child Protective Services (same guidance, be prepared to be specific and expect skepticism – CPS is not there to enforce parenting time orders or resolve disagreements between joint legal custodians as to what is best for their child).

If you are a parent who is considering refusing to exchange the child due to your perception of greater risk in the other home, think carefully about this decision and whether you have a supportable basis for it, as there could be negative consequences associated with it.  If you have proof that there are active symptoms, or a confirmed case of COVID-19 in the other parents’ home, do your best to convince the other parent to agree that the child stays with you.  Offer virtually unlimited contact by phone or Internet-based communication, assure the other parent they will get makeup time so the parent doesn’t lose anything by allowing the child to stay in your lower-risk environment, and do whatever else is appropriate to try to reach an agreement with the other parent.  If they assert you are exaggerating the risk in their home, listen and deal with the facts they present.  Reach out if we can be of help to get you to a mediator (many of whom are holding mediation sessions by phone to assist parents like you).    

If a child is with you and the other parent refuses to take the child even though their parenting time is supposed to start, this is not an enforceable violation of the order under the current circumstances.  You will be responsible to provide for care of the child, and for finding appropriate child care if you have to work.  Leaving a young child alone is not appropriate and is a basis for CPS intervention.  You can ask for additional financial support through the courts to repay your added costs.  These motions are not considered emergency motions and will not be heard for some time, unless you need child support and that motion can be heard in relatively short order.  We will do our best to monitor the government benefits available to parents – like which parent will receive the anticipated $500 per child that is being discussed on the national news as a part of new legislation.    

Once the crisis is past, the Courts will be accepting motions and holding hearings on alleged violations of parenting time orders.  In cases where there was a reason to withhold a child that is deemed valid or understandable, the remedies will likely be makeup parenting time (of the same type and duration lost).  If the Court decides the withholding parent was being unreasonable, sanctions for contempt of court are likely – a declaration of contempt, costs and attorney fees as well as makeup parenting time, perhaps more than was missed will be ordered in most cases; and, in the worst cases, incarceration is an option.  Parents who repeatedly refuse any sort of contact between the child and the other parent are most at risk for severe contempt sanctions (although you can monitor the communication if there is reasonable concern that the parent will use the communication to scare the child, place unfair blame on the other parent, or encourage running away or other dangerous disobedience).   

While we are often working remotely, the Family Law attorneys at Mika Meyers are available to assist you if you want further information.  We hope this situation is one that you can handle by working in good faith with the other parent, recognizing that fear of the unknown makes everyone act a little irrationally, with patience and love for your children.